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East Africa 9

By Arthur Okoth-Owiro

THE NILE TREATY

StateSuccession and

InternationalTreaty

Commitments:A Case Study ofThe Nile Water

Treaties

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Published by: Konrad Adenauer Foundation Law and Policy Research Foundation27 Mbaruk Road Dhanjay ApartmentsGolf Course 9th Floor, Apt. 904Nairobi, Kenya Valley Arcade/Korosho Road

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By Arthur Okoth-Owiro

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© Konrad Adenauer Stiftung and Law and Policy Research Foundation 2004.

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Source: World Bank

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THE NILE TREATY

State Succession andInternational Treaty Commitments:

A Case Study of The Nile Water Treaties

BY ARTHUR OKOTH-OWIRO

Nairobi 2004

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ContentsPart II. Introduction .............................................................................................. 1

II. The Nile: Hydrological, economic and legal aspects ................................. 2III. The Nile water treaties ............................................................................. 6III. State succession to treaties ...................................................................... 10V. Tthe legal status of the Nile water treaties .............................................. 13VI. Tthe Nile: In search of a legal regime .................................................... 21VII. The Nile questions: Implications for East Africa .................................... 28VII. Summary and conclusions ..................................................................... 34References ..................................................................................................... 35

Annex I. The position of the Nile basin countries onthe Nile water treaties .............................................................................. 37

Part II: The Nile treaties ............................................................................. 43Preamble ....................................................................................................... 44Factfile about the Nile river ........................................................................... 44Great Britain and Northern Ireland and Egypt .............................................. 49

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declared that they are not bound by anysuch treaties.

On the other hand, competing principlesof international fluvial law has allowedlower riparian states, especially Egypt, toargue that the Nile water treaties arebinding in perpetuity. Water scarcity andthe national security of the Nile riparianstates now threaten to escalate tension overaccess to Nile waters into an open conflict,with Egypt threatening war should upperriparians divert the waters of the Nile. Aframework for the equitable distribution ofNile waters is urgently required.

The purpose of this paper is to explore thelegal position of successor states with regardto international treaty commitments. Acase study of the Nile Water Agreements isundertaken to clarify the rights and dutiesof states with regard to water treaties ingeneral and Nile waters in particular.

This study is considered useful because thestatus of the Nile as a shared water resource,and the emergence of new states on itsbasin, dictate that a legal regime to regulateaccess to its waters has to be negotiated inthe 21st Century. It is, therefore, necessaryto clarify the historical and contemporarysituation in order to prepare for the future.It may also be useful to remind riparianstates of their fundamental interests in theNile waters and treaty negotiations.

Ultimately, the views expressed in this paperare an East African view of the Nile question.

Many bilateral treaties were concludedbetween Egypt, Britain and other powersbetween 1885 and the Second World Warto regulate the utilisation of the waters ofthe River Nile. At that time, the entire NileBasin was under the sovereignty of foreign,mainly European powers. They committedthemselves to Egypt and Britain that theywould respect prior rights to, and especiallyclaims of “natural and historic” rights toNile waters, which Egypt asserted. A legalregime based on these treaties was thusestablished over the Nile.

Since the Second World War, most of theterritories on the Nile Basin have changedsovereignty with the majority acquiring fullstatehood as a result of de-colonization. Arethese successor states bound by treaties,which were purportedly concluded on theirbehalf by their predecessors? It is obviousthat the treaties can no longer reflect thepriorities and the strategic interests of these“new” states as they see them. In particular,access to the Nile waters is now regardedby these states as a sovereign right and aprerequisite for development.

Indeed, many of the upper-riparian statesinvoke the Harmon doctrine, which holdsthat a state has the right to do whatever itchooses with the waters that flow throughits boundaries, regardless of its effect on anyother riparian state. It has also beensuggested that the independence of the newstates was a fundamental change incircumstances that made the continuedvalidity of colonial-era treaties untenable.Some of the Nile basin countries have

I. INTRODUCTION

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II. THE NILE: HYDROLOGICAL, ECONOMIC AND LEGALASPECTS

2.1 Hydrological FeaturesThe Nile, which is the only drainage outletfrom Lake Victoria, is one of the longest riversin the world. Its total length together withthose of its tributaries is about 3,030,300kilometres. The catchment area of the Niletotals some 2,900,000 square kilometres,representing about one-tenth of the surfacearea of the entire African Continent.

The Nile measures some 5,611 kilometresfrom its White Nile source in Lake Victoria(East Africa) and some 4,588 kilometresform the Blue Nile source in Lake Tsana(Ethiopia). Thus, the river system originatesfrom two distinct geographical zones.

One subsystem, with the White Nile as itsmain artery, originates in the equatoriallakes of East and Central Africa, the mostimportant of which is Lake Victoria, andin the Bahr-el-Ghazal water system — a vastlagoon formed by the convergence of anumber of streams rising to the East andNorth of the Nile-Congo divide.

The other subsystem consists of the BlueNile and its tributaries, the Atbara and theSobat. It originates from the EthiopianPlateau (Hurst, 1952; Waterbury, 1979;Godana, 1985).

The Nile is made up of three maintributaries. These are the White Nile, theBlue Nile and the Atbara. The White Nilerises from its source in the highlands ofRwanda and Burundi and flows into Lake

Victoria. It leaves Lake Victoria at itsnorthern shore near the Ugandan town ofJinja, through a swampy stretch aroundLake Kyoga in Central Uganda and thenheads north towards Lake Albert.

Lake Albert receives a good amount of waterfrom the Semliki River, which has its sourcein the Congo and empties first into LakeEdward, where it receives additional waterfrom tributaries coming from the RwenzoriMountains on its way to Lake Albert. FromLake Albert, the White Nile flows Northinto Southern Sudan (Kasimbaji, 1998).

Lake Victoria, Edward and Albert are thenatural reservoirs, which collect and storegreat quantities of water from the highrainfall regions of eastern Equatorial Africaand maintain a permanent flow down theWhite Nile with relatively small seasonalfluctuations (Beadle, 1974: 124).

In Southern Sudan, near the capital city ofKhartoum, the White Nile meets the BlueNile, which drains Lake Tsana in theEthiopian Highlands. The two flowtogether to just north of Khartoum wheresome 108 kilometres downstream, they arejoined by the Atbara, the last importantriver in the Nile system, whose source is inEritrea. The river then flows north throughLake Nasser and the Aswan Dam beforesplitting into major distributaries, theRosetta and Damietta, just north of Cairo.These distributaries flow into theMediterranean Sea (Okidi, 1982).

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discharge, but at the lowflow it accounts for four-fifths of the total deltadischarge” (page 81).

Secondly, there is something infinitelymisleading about measuring the flow of theNile at Khartoum. It is estimated that some24 milliards of cubic metres of water flowdown the White Nile from Lake Albert andthe East African highlands, half of which islost through the intense evaporation andsoakage in the Sudd (Godana, 1985). Infact an official Sudanese Governmentpublication puts the total swamp losses at42 milliards of cubic metres (Sudan, 1975).

What should be measured is the amountof water leaving the lake plateau of EastAfrica, rather than what passes throughKhartoum. This is a more realistic estimateof the White Nile’s contribution. After all,Egypt and Sudan already have a treaty, the1959 Agreement, on how to apportion anyadditional Nile waters, and the JongleiCanal project is being undertaken toachieve the purpose of reducing the lossesof water in the Sudd, in order to increasethe amount reaching Khartoum.

Thirdly, estimating the flow of the Nile onthe basis of how much water reaches Sudanor Egypt appears to assume that the purposeof the Nile is to feed these two countrieswith water. On such an assumption, onlythe water reaching its destination is worthaccounting for! Surely, the waters of the Nileare important and useful for and in theentire basin – from Kagera to theMediterranean.

According to Godana (1985), the averageannual flow of the Nile is 84 milliards ofcubic metres as measured in Aswan. Ofthis total, Bard (1959) estimates that 84 percent is contributed by Ethiopia and only16 per cent comes from the Lake Plateauof Central Africa. A similar distributionpattern is given by Godana (1985: 82) whoasserts that 85 per cent of the flow of theNile originates from the Ethiopian plateau,whereas only 15 only comes from the EastAfrican source areas. It is, however,important to note that the statistics of theflow of the Nile are a complex matter, whichthe above estimates tend to over-simplify.

First, it must be remembered that the flowof the White Nile is relatively regularthroughout the year as opposed to the BlueNile - Atbara sub-system, which fluctuatesseasonally. At its peak discharge is July-September, Godana (1985: 81) reports thatthe Blue Nile swells to an enormoustorrential flow and accounts for some 90per cent of the waters passing throughKhartoum. By April, however, by April,the volume of water from these two sourcesdwindles to one-fortieth of the flooddischarge, to account for no more than 20per cent of the waters passing Khartoum.This calculation tallies with Garretson’s(1967) estimates that at the peak of its flood(April-September), the Blue Nile alonesupplies 90 per cent of the water passingthrough Khartoum, but in the low season(January-March) it provides only 20 percent. From this statistical informationGodana (1985) concludes:

“the White Nile atKhartoum provides only 40per cent of the river’s peak

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apart from all other international rivers(Pompe, 1958).

Increasingly, all the basin states have cometo view the Nile as a principal feature oftheir economies. They show an increasinginterest in the abstraction and diversion ofNile water for various developmentpurposes, irrigation included. Examples ofsuch developments include the JongleiCanal Project in Sudan (which has beendormant due to the raging conflict since1983), and the planned construction, byEthiopia, of a new facility on the Blue Nileto supply irrigation water for 1.5 millionnewly resettled peasants in the westernprovince of Welega as well as to provide asteady source of hydroelectric power for thecountry (Kukk and Deese, 1996:44).

Godana (1985) also reports that Tanzaniahopes to implement a plan to abstract thewaters of Lake Victoria to irrigate therelatively low and dry steppes of CentralTanzania. And with the establishment ofthe Lake Basin Development Authorityin Kenya, the country has began to treatthe resources of the Lake Victoria basinmore comprehensively.

The economic importance of the Nile isalso reflected in the establishment of varioussub-basin initiatives for the developmentand management of basin resources. Theseinclude the Kagera Basin Organisation, theTechnical Cooperation for the Promotionof the Development and EnvironmentalProtection of the Nile Basin(TECCONILE) and the Lake VictoriaEnvironment Management Programme(LVEMP) (Kazimbazi, 1998).

2.2 Economic AspectsIn general, the waters of the Nile are utilisedfor irrigation, hydro-electric powerproduction, water supply, fishing, tourism,flood control, water transportation and theprotection of public health (Kazimbazi,1998). In particular, it should be noted thatthe economy of the entire Nile Basin almostentirely consists in the agricultural activitiesof the co-riparians of the Nile - Rwanda,Burundi, Congo, Tanganyika, Kenya,Uganda, Sudan, Ethiopia, Eritrea and Egypt.

In the upper-basin states of Ethiopia,Eritrea, Kenya, Uganda, Tanzania,Democratic Republic of Congo, Rwandaand Burundi, settled agriculture is thegeneral economic activity. The lower-basinstates of Sudan and Egypt are also primarilyagricultural economies but, in contrast withthe upper-basin states, their agriculture islargely irrigation-based. The economic useof the Nile for purposes of agriculture(particularly irrigation-based agriculture) is,therefore, its most important use.

In Egypt, a desert agricultural country, theentire life of the nation is dependent on theriver’s waters. As President Anwar Sadatstated in 1978,

“We depend upon the Nile100 per cent in our life, so ifanyone, at any moment,thinks of depriving us of ourlife we shall never hesitateto go to war” (Kukk andDeese, 1996:46).

The complete control of the river over theeconomy of Egypt has been characterisedas the unique feature of the Nile, setting it

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2.3 The Legal AspectsThe Nile is an international river. As ashared water resource, the development,utilisation and management of the Nilebasin waters is regulated by internationalwater resources law. Following thenomenclature of Article 38 of the Statuteof the International Court of Justice,international water resources law may bederived from:

a) International conventions, whethergeneral or particular;

b) International customs;c) The general principles of law

recognised by civilized nations; andd) As a subsidiary means, the judicial

decisions and the teachings of themost highly qualified publicists ofthe various nations.

The conclusion of international treaties orconventions has been the most importantmethod of international law-making, hencethe primary means for the establishmentof international rights and obligations overshared water resources. Most authoritieswould hold that an international treaty orconvention is needed to ensure the mostreasonable utilisation of international water

courses (Bruhacs, 1993:59). There is nosuch international treaty applicable to theNile, and even the United NationsConvention on the Law of the Non-Navigational uses of Internationalwatercourses of 1997 (36 I.L.M. 700),which is sure to change the regime ofinternational water law, has not entered intoforce.

Besides, although “nearly all thecommentators on the problems of the fulldevelopment of the Nile basin haveconcluded their various analyses with asuggestion in one form or another of theneed for a Nile River Basin Authority orAdministration” (Garretson, 1960:144),such a basin-wide institution has nevermaterialised.

The legal regime for the utilisation andmanagement of the Nile, therefore, consistsof bilateral treaties concluded amongst theriparian states, and the internationalcustomary law. It has been suggested thatthese bilateral treaties reflect customary lawprinciples (Fahmi, 1986) — a position thathas been vigorously contested (Batstone,1959; Pompe, 1958).

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III. THE NILE WATER TREATIES

The purpose of this section is to describeand analyse the treaties and legalinstruments, which fall into the first threecategories. These are the legal instrumentswhose devolution or inheritance is thesubject matter of this paper.

3.1 Treaties between U.K andthe powers controlling the NileBasinBetween 1891 and 1925, the UnitedKingdom of Great Britain entered into fiveagreements on the utilisation of the watersof the Nile.

On April 15, 1891, the United Kingdomand Italy signed a protocol for thedemarcation of their respective spheres ofinfluence in Eastern Africa. Article III ofthis Protocol sought to protect the Egyptianinterest in the Nile waters contributed bythe Atbara River, the upper reaches of whichfell within the newly acquired Italianpossession of Eritrea. The Article providedas follows:

“The Government of Italyundertakes not toconstruct on the Atbaraany irrigation or otherworks which might sensiblymodify its flow into theNile”.

On May 15, 1902, the United Kingdomof Great Britain and Ethiopia, the formeracting for Egypt and the Anglo-EgyptianSudan, signed at Addis Ababa, a Treatyregarding the Frontiers between the Anglo-

The Nile water treaties have been thesubject of many studies and comments,most notably by Batstone (1959),Garretson (1960), Teclaff (1967), Okidi(1982 and 1994), Godana (1985) andCarrol (1999).

As Godana (1985) observes, with theestablishment of European colonial ruleover most of the Nile basin in the closingdecades of the 19th Century, it becamenecessary to regulate, through treaties andother instruments, the water rights andobligations attaching to the various colonialterritories within the basin.

In this manner, the colonial period cameto witness a steady development of formaltreaties and regulations as well as ofinformal working arrangements andadministrative measures which, takentogether, constituted the legal regime of theNile drainage system.

The treaties and legal instrumentsregulating the use of Nile waters may bedivided into four categories. These are:-

(i) Treaties between the UnitedKingdom and the powers in controlof the upper reaches of the Nilebasin around the beginning of the20th Century;

(ii) The 1929 Nile Waters Agreement;(iii) Agreements and measures

supplementing and consolidatingthe 1929 Agreement; and

(iv) Post-colonial treaties and otherlegal instruments.

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Egyptian Sudan, Ethiopia and BritishEritrea. Article III of the Treaty wasconcerned, not with boundaries, but withthe Nile waters originating in Ethiopia.It provided:

“His Majesty the EmperorMenelik II, King of kings ofEthiopia, engages himselftowards the Governmentof His Britannic Majesty notto construct or allow to beconstructed, any worksacross the Blue Nile, LakeTsana or the Sobat, whichwould arrest the flow oftheir waters into the Nileexcept in agreement withhis Britannic Majesty’sGovernment and theGovernment of theSudan”.

On May 9, 1906, the United Kingdomand the Independent State of the Congoconcluded a Treaty to Re-define TheirRespective Spheres of Influence inEastern and Central Africa. Article IIIof the Treaty provided:

“The Government of theIndependent State ofCongo undertakes not toconstruct or allow to beconstructed any work overor near the Semliki orIsango Rivers, which woulddiminish the volume ofwater entering Lake Albert,except in agreement withthe SudaneseGovernment”.

On April 3, 1906, the United Kingdom,France and Italy signed a tripartite

agreement and set of declarations inLondon. Article IV(a) provided that:

“in order to preserve theintegrity of Ethiopia andprovide further that theparties would safeguardthe interests of the UnitedKingdom and Egypt in theNile basin, especially asregards the regulation ofthe water of that river andits tributaries …”.

Finally, in December 1925, there was anexchange of Notes between Italy and theUnited Kingdom by which Italy recognisedthe prior hydraulic rights of Egypt and theSudan in the headwaters of the Blue Nileand White Nile rivers and their tributariesand engaged not to construct on the headwaters any work which might sensiblymodify their flow into the main river.

Garretson (1960) and Godana (1985)observe that regardless of whether theabove agreements were concluded byBritain with another European powerseeking to establish a sphere of influence,or with an African state such as Ethiopia,they had the common objective ofsecuring recognition of the principle thatno upper-basin state had the right tointerfere with the flow of the Nile, inparticular to the detriment of Egypt.

3.2 The 1929 Nile WatersAgreement.The Exchange of Notes between GreatBritain (acting for Sudan and her EastAfrican dependencies) and Egypt inregard to the use of the waters of the Nile

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any works on the river and itsbranches, or to take any measurewith a view to increasing thewater supply for the benefit ofEgypt, they will agree beforehandwith the local authorities on themeasures to be taken to safeguardlocal interests. The construction,maintenance and administrationof the above mentioned worksshall be under the direct controlof the Egyptian Government.

The Agreement also expressed recognitionby Great Britain, of Egypt’s “natural andhistoric rights in the waters of the Nile”,even though the precise content of theserights was not elaborated.

The 1929 Nile Waters Agreement has beeninvoked by those who regard it as apraiseworthy recognition of the water rightsof Egypt (Smith, 1931). To some Egyptianwriters, it has merely recorded Egypt’sestablished rights over the Nile sinceantiquity (Khadduri, 1972). But theoverwhelming weight of expert opinionappears to favour the view that the “The1929 settlement of the Nile waters was apolitical matter and that it cannot be usedas a precedent in internationallaw““(Berber, 1959:96)”.

3.3 Agreements Consolidatingand Supplementing the 1929AgreementThe most important agreements falling intothis category are the supplementaryAgreement of 1932 (the Aswan DamProject) and the Owen Falls Agreement.Given the effect of the 1959 Agreement forthe full utilisation of the Nile Waters

for irrigation purposes (“The 1929 NileWaters Agreement”) is the mostcontroversial of all the Nile Wateragreements. It is also the most important.According to Batstone (1959), it is thedominating feature of legal relationshipsconcerning the distribution andutilisation of the Nile waters today.Godana (1985) adds that theagreement”“has become the basis of allsubsequent water allocations (but) hasbeen viewed differently by variouswriters” (page 176).

The purpose of the 1929 Nile Watersagreement was to guarantee and facilitatean increase in the volume of water reachingEgypt. The Agreement was based on theoutcome of political negotiations betweenEgypt and Great Britain in 1920s, and inparticular on the report of the 1925 NileWaters Commission, which was attachedto the agreement as an integral part thereof.

The Agreement provided as follows:(i) Save with the previous agreement

of the Egyptian Government, noirrigation or power works, ormeasures are to be constructed ortaken on the River Nile or itsbranches, or on the lakes fromwhich it flows in the Sudan or incountries under Britishadministration, which would, insuch a manner as to entail prejudiceto the interests of Egypt, eitherreduce the quantities of waterarriving in Egypt or modify thedate of its arrival, or lower its level.

(ii) In case the Egyptian Governmentdecides to construct in the Sudan

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Uganda Electricity Board,the latter will regulate thedischarges to be passedthrough the dam on theinstructions of the EgyptianGovernment for thispurpose in accordancewith arrangements to beagreed upon between theEgyptian Ministry of PublicWorks and the a pursuantto the provisions ofagreement to beconcluded between thetwo Governments.”

The Agreement also provided that theUgandan Government could take anyaction it considered desirable before or afterthe construction of the dam, provided thatit did so after consultation and with theconsent of the Egyptian Government, andprovided further that:

“— this action does notentail any prejudice to theinterests of Egypt inaccordance with the NileWaters Agreement of 1929and does not adverselyaffect the discharge ofwater to be passedthrough the dam inaccordance with thearrangements to beagreed between the twoGovernments —.”

In other words, the Egyptian interests inthe flow of the Nile waters, as defined inthe 1929 Nile Agreement, remainedpredominant, and Uganda’s sovereign rightto deal with its dam was made subject tothe established and future Egyptian rightsand interests. The Owen falls Dam wascompleted in 1954.

between Egypt and Sudan, only the OwenFalls Agreement merits analysis here.

The last colonial-era treaty regulation of theNile River System was the 1952 Agreementconcluded by Exchange of Notes betweenEgypt and the United Kingdom (acting forUganda) concerning the construction of theOwen Falls Dam in Uganda, then underBritish colonial administration. Thepurpose of the Agreement was two-fold:

(a) the control of the Nile Waters, and(b) the production of hydroelectric

power for Uganda.

The most important point of thesubstantive legal regime created by OwenFalls Dam Agreement was the regulationof the Nile River flow. The Agreementprovided as follows:

“The two governmentshave also agreed thatthough the construction ofthe dam will be theresponsibility of theUganda Electricity Board,the interests of Egypt will,during the period ofconstruction, berepresented at the site bythe Egyptian residentengineer of suitable rankand his staff stationedthere by the RoyalEgyptian Government towhom all facilities will begiven for theaccomplishment of theirduties. Furthermore, thetwo governments haveagreed that although thedam when constructed willbe administered andmaintained by the

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The purpose of this section is to outlinethe law on state succession and how thislaw affects treaties, with particular emphasison water treaties.

3.1 State SuccessionState succession arises when there is adefinitive replacement of one state byanother in respect of sovereignty over agiven territory in conformity withinternational law (Brownlie, 1990:654). Inother words, state succession consists of anychange of sovereignty over a given territorywhose effect is recognised in internationallaw. It includes both “Succession in fact”and”“Succession in law”.

Succession in fact refers to the factualsituation in which, through some politicalevolution, a territory that previously wasplaced under the sovereignty of one statecomes to fall under that of another statei.e. to the transfer of territory from one stateto another.

Such a transfer may occur when theterritory of one state is annexed, in wholeor in part; by another state, when one statecedes part of its territory to another; whentwo or more states merge to form a singlestate; when part of a national communitysecedes from a state, or combines withanother existing state; or when a territorialcommunity which was under colonial ruleachieves independence by a process ofrevolution or constitutional evolution.

The common feature of all these forms offactual succession is that one state ceases to

be real in a territory and another takesits place.

Succession in law refers to the successionof the new sovereign to legal rights andobligations of the old sovereign, or moregenerally, to pre-existing legal situations.Thus, succession in law is a legalconsequence of succession in fact. We arehere concerned with the obligations of theprevious sovereign to its territorial successor.

State succession is an area of greatuncertainty and controversy. This is duepartly to the fact that much of the statepractice is equivocal and could be explainedon the basis of special agreement andvarious rules distinct from the category ofstate succession. Not many settled legalrules have emerged as yet (Brownlie, 1990).

In other words, it is not clear, from eitherwritings on international law or the practiceof states, how and to what extent a legalprinciple of state succession applies in thesense of the transmissibility of rights andobligations from one state to another. Forstate succession in fact does not entail anautomatic juridical substitution of thefactual successor state in the complex sumof rights and obligations of the predecessorstate (Godana, 1985:134).

3.2 State Succession in the NileBasinThe Nile Basin has witnessed severalchanges in territorial sovereignty over theyears. Just as European occupation andcolonisation was the most important

III. STATE SUCCESSION TO TREATIES

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treaties of the predecessor sovereign byvirtue of a principle of state succession.

As a matter of general principle a new state,ex-hypothesi a non-party, cannot be boundby a treaty, and in addition other parties toa treaty are not bound to accept a new party,as it were, by operation of law (Brownlie,1990:668). The rule of non-transmissibilityapplies both to secession of newlyindependent states (that is, to cases ofdecolonisation) and to other appearancesof new states by the union or dissolutionof states.

To the general rule of non-transmissibility(the “clean state” doctrine) there are someexceptions. The clear examples are:

i) law-making treaties or treatiesevidencing rules of generalinternational law,

ii) boundary treaties.

It is held by some writers that a thirdcategory of treaties, which they call“dispositive,””“localized” or “real,” are alsoan exception to the general rule of non-transmissibility (O’Connel, 1956; McNair,1938). Proponents of the doctrine ofdispositive treaties divide all treaties intotwo main categories, viz, personal treatiesand impersonal or dispositive treaties.Personal treaties are those dealing withpolitical, administrative or economicrelations; they are, therefore, basicallycontractual in character in that they arepersonal to the parties. A personal treaty issaid to be fundamentally a contract and,therefore, dependent on the continuedexistence of the parties. If any of the partiesto such a treaty disappears in relation to a

influence in state-formation in the region,decolonisation has been the most importantcause of state succession. All the ten NileBasin countries, except Egypt and Ethiopia,were dependencies of various Europeanpowers and became independent states inthe second- half of the 20th Century. Andaside from decolonisation, state successionin the Nile basin has been prompted bysuch diverse factors as conquest,annexation, merger and secession. A fewexamples will suffice.

Egypt has been part of the OttomanEmpire, under Turkish Suzerainty; aprotectorate of Great Britain, anindependent state and finally in 1958, partof the United Arab Republic after unitingwith Syria. Ethiopia, a sovereign state, wasconquered by Italy in 1936, a change ofsovereignty that was recognised byEuropean powers. Eritrea was a colony ofItaly, became a part of Ethiopia and is nowan independent state, after a war ofsecession. And Tanganyika, Rwanda andBurundi were colonised by Germany andthen became mandated territories,respectively under Britain and Belgium,before gaining independence to becomesovereign states. In 1964, Tanganyikamerged with Zanzibar to form Tanzania.All the 10 riparian states on the Nile aresuccessor states.

3.3 Succession to TreatiesThe effect of change of sovereignty ontreaties is not a manifestation of somegeneral principles or rule of state succession,but rather a matter of treaty law andinterpretation (O’Connell, 1956). When anew state emerges it is not bound by the

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insufficient evidence ineither principle or practicefor the existence of thisexception to the generalrule. First, much of thepractice is equivocal andmay rest onacquiescence. Secondly,the category is verydifficult to define and it isnot clear why treatiesapparently includedshould be treated in aspecial way. Supporters ofthe alleged exceptionlean on materials, whichare commonly cited asevidence of anindependent concept ofstate servitude “(Brownlie1990:669)”

3.4 The PracticeIn practice problems of succession are dealtwith by devolution (or inheritance)agreements, by original accession toconventions by new states and by unilateraldeclarations. (Brownlie, 1990:671).

On a considerable number of occasions theinheritance or devolution of treaty rightsand obligations has been the subject ofagreements between the predecessor andsuccessor states. Such agreements promotecertainty and stability of relations. InAfrica, Great Britain concluded inheritanceagreement with Ghana, Nigeria, SierraLeone and the Gambia (Mutiti, 1976:33-39). It is, therefore, reasonable to conclude/infer that Great Britain did not want treatyrights and obligations over the Nile todevolve. Otherwise, she would haveconcluded inheritance treaties with herformer dependencies.

part of its territory, it ceases to be able tofulfil the obligations undertaken as asovereign power over that territory.

Dispositive treaties, on the other hand, arethose which create “real” rights andobligations i.e. rights and obligations in remin territory. As such, dispositive treaties areimmune to the change of sovereignty andrem with the land like the easement ofEnglish Common law or the servitudes ofRoman law. Examples of such treaties aresaid to include river treaties, boundarytreaties and treaties of peace and neutrality.

The idea of dispositive treaties isunconvincing. Lester (1963) discusses itat length and finds first, that it isimpossible to define the differencebetween localised and non-localisedtreaties, and second, that British statepractice does not appear to recognise aspecial category of localised (dispositive)treaties for purposes of state succession.

In his opinion, both in theory andaccording to British and Commonwealthpractice, localised treaties are no exceptionto the general rule that bilateral treaties donot devolve upon successor states, and thisopinion accords with the position ininternational law. Where rights in rem arerecognised by new states, recognition isexplained otherwise than an account of theautomatic descent of treaties.

A similar conclusion is reached by Brownlie(1990) when he says;

“The present writer, incompany with others,considers that there is

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V. THE LEGAL STATUS OF THE NILE WATER TREATIES

on behalf of Kenya, Tanganyika andUganda (Lester, 1963:501). And August27, 1959, the United Kingdom made thefollowing statement.

“—the territories of BritishEast Africa will need fortheir development morewater than they at presentuse and will wish theirclaims for more water tobe recognised by otherstates concerned.Moreover, they will find itdifficult to press aheadwith their owndevelopment until theyknow what new worksdownstream states willrequire on the headwaterswithin British East AfricanTerritory. For this reason theUnited KingdomGovernment wouldwelcome an earlysettlement of the wholeNile waters question”.(Garrestson, 1960:143).

It is also a significant fact that as soon asthe dependent territories becameindependent, they refused to accept thevalidity of the Nile Water Treaties. Thus,after attaining independence in 1956,Sudan denied the continued validity ofthe 1929 Nile Water Agreement. In fact,Egypt was compelled to negotiate a newtreaty with its southern neighbour, the1959 agreement on the full utilisation ofthe Nile Waters.

When it became independent in 1960,Tanganyika refused to be bound by treaties

What is the legal status of the Nile watertreaties described above – or morespecifically, is the international legal regimeestablished over the Nile through treatiesconcluded between Great Britain and Egyptwith other powers still operational andbinding on Nile basin states? The answerto this question is fundamental to the issueof rights and obligations over Nile waters.

If the Nile Waters Treaties are valid andbinding, they legitimise the legal order ofthe colonial period that gave Egypt pre-eminence in the control of the Nile anddevelopments in the basin. This would bea severe constraint on the developmentefforts and opportunities of upper riparianstates. But if the Nile Waters treaties arenot binding, then the control andutilisation of Nile waters are regulated bythe principles of customary internationalwater law. It would also mean that the Nileis in search of a new legal regime in theform of a basin-wide agreement. This wouldprovide plenty of room for negotiation andbargaining as amongst the riparian states.It could help develop a utilisation regimethat is more sustainable and equitable.

5.1 The Problem in PerspectiveThe legal status of the Nile Water treatieshas been a contentious issue since the1950s. On May 18, 1956, in a statementattributed to the Joint Undersecretary forForeign Affairs, it was stated that the BritishGovernment regarded the 1929 agreementand other treaties creating a regime over theNile waters as subject to revision, and thatit was intended to negotiate new terms

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identical notes to the Governments ofBritain, Egypt and Sudan outlining thepolicy of Tanganyika on the use of thewaters of the Nile. The note read as follows:

“The Government ofTanganyika, conscious ofthe vital importance ofLake Victoria and itscatchment area to thefuture needs and interestsof the people ofTanganyika, has given themost serious considerationto the situation that arisesfrom the emergence ofTanganyika as anindependent sovereignstate in relation to theprovisions of the NileWaters Agreements on theuse of the waters of theNile entered into in 1929 bymeans of an exchange ofNotes between theGovernments of Egypt andthe United Kingdom.

As the result of suchconsiderations, theGovernment ofTanganyika has come tothe conclusion that theprovisions of the 1929Agreement purporting toapply to the countriesunder British Administrationare not binding onTanganyika. At the sametime, however, andrecognising theimportance of the watersof the Nile that have theirsource in Lake Victoria tothe governments andpeople of all riparianstates, the Government ofTanganyika is willing toenter into discussions withother interested

concluded by Great Britain on her behalf,and in particular, objected to the 1929 NileWaters Agreement. In 1961 theGovernment of Tanganyika made adeclaration to the Secretary-General of theUnited Nations in the following terms:

‘As regards bilateraltreaties validly concludedby the United Kingdom onbehalf of the territory ofTanganyika, or validlyapplied or extended bythe former to the territoryof the latter, theGovernment ofTanganyika is willing tocontinue to apply within itsterritory on a basis ofreciprocity, the terms of allsuch treaties for a periodof two years from the dateof independence— unlessabrogated or modifiedearlier by mutual consent.At the expiry of thatperiod, the Government ofTanganyika will regardsuch of these treatieswhich could not by theapplication of rules ofcustomary internationallaw be regarded asotherwise surviving, ashaving terminated.’(Seaton and Maliti, 1973;Brownlie, 1990).

Tanganyika’s approach was adopted byother countries including Kenya, Uganda,Burundi and Rwanda, who all refused tobe bound by treaties concluded by colonialpowers (Okidi, 1982).

In the matter of the 1929 Nile WatersAgreement, the Government ofTanganyika, on July 4, 1962, addressed

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This pressure is compounded by the factthat most of the Nile Basin states have onlyrecently started making systematic andappreciable (usually very unilateral)demands on the waters of the Nile and itseffluents, as they embark on post-colonialprogrammes of development.

It is, therefore, not surprising that the statusof the Nile treaties keep being raised as anissue in the fora in which resource rightsand water are being discussed. In Kenya inrecent times, there have been no less thanfour appeals to address the Nile watersquestion. Thus, speaking to journalists onFebruary 12, 2002, Energy Minister RailaOdinga said that the 1929 Agreementshould be renegotiated. Continued he;

“The three countries(Kenya, Uganda andTanzania) were notindependent and wereunder colonial rule. That iswhat makes the treatyunfair. Why should we bedenied the use of ourwater in the name ofconserving it for othersdownstream?” (DailyNation, 13th Feb, 2002,page 5).

And speaking at a water conference inNairobi on 21st March 21, 2002, aprominent international lawyer, Prof.Charles Odidi Okidi declared that the1929 Agreement was not binding andshould not be honoured by Kenya andother East African countries (page 4,Daily Nation March 22, 2002) Mbaria(2002) and Kamau (2002) have madesimilar statements.

governments at theappropriate time, with aview to formulating andagreeing on measures forthe regulation and divisionof the waters in a mannerthat is just and equitable toall riparian states and thegreatest benefit to all theirpeoples” (Seaton andMaliti, ‘973).

Another source of pressure on the legalstatus of the Nile Water Treaties is waterstress and water scarcity in the Nile Basin.Hydrologists define countries whose annualwater supply averages between 1,000 and2,000 cubic meters per person as waterstressed (the category before water scarce).A country is determined to be water scarcewhen its annual supply of internalrenewable water falls below 1,000 cubicwaters per person (2,740 litres per day). Insocio-economic terms, scarcity occurs whenthe lack of water endangers foodproduction, constrains economicdevelopment and jeopardises a country’snatural systems (Gleick, 1993).

Due to a combination of factors, includingpopulation growth, consumption practicesand patterns, diversionary activities of waterresources and climatic and environmentalconditions, the Nile basin countries arebeginning to experience water scarcity, withfour of them (Egypt, Kenya, Rwanda andBurundi) already classified as water-scarcestates. (Kukk and Deese, 1996). Access tothe waters of the Nile is becoming a securitymatter, and the matter of rights andobligations is at the centre of things.

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And from statements attributed to herpolitical leaders, Egypt clearly regards accessto the waters of the Nile as a nationalsecurity matter. Egypt has repeatedly statedthat if Ethiopia or any other upstreamcountry diverts the Nile, she would useforce to rectify the situation (Myers, 1989;Starr, 1991).

(iii) The Writings of PublicistsSome writers have expressed the view,based on the controversial idea ofdispositive treaties, that the Nile Waterstreaties were either declaratory ofprescriptive rights or territorial incharacter and, therefore, transmissible.

Thus Vali (1958) describes the 1929 NileWaters Agreement as an agreement whoseterritorial character necessitates its respectby successor states (Lester, 1963:500).And Godana (1985) proceeds on theassumption that the 1929 agreement isbinding. He declares:

“— Of all the earlyinstruments on theutilisation of the NileWaters, only the 1929agreement, asimplemented by a numberof subsequent agreementsand measures, seems tosurvive. The survival of thisparticular treaty isunmistakably attested toby available evidence”(page 156).

But the “available evidence” is difficult toisolate, given that elsewhere, Godana(1985) opines as follows:

The status of the Nile Water treaties hasalso been raised in the East Africanlegislative Assembly by Yona Kanyomozi ofUganda (Kamau, 2002).

5.2 The Claim that the NileWater Treaties are valid andbindingThe claim (and assertion) that the NileWater treaties are valid and binding onsuccessor states is based on, or encouragedby three sets of factors. These are theattitude of Egypt towards the treaties, thewritings of certain publicists and theambivalent position expressed by someriparian countries.

(i) Egypt’s PositionEgypt holds the view that all the Nile Riveragreements are by their nature perpetuallybinding on successor states. In herestimation, these instruments aretransmitted to the successor states and maybe either amended or abrogated only byconsent in accordance with the ViennaConvention on the Law of Treaties. Egyptfurther asserts that treaties concluded byEuropean powers acting on behalf ofcolonised African states continue to be inforce by virtue of the law of state successionand because of the territorial nature of theobligations resulting from these treaties(Godana 1985).

Egypt also holds the view that she has“natural and historic” rights over Nilewaters acquired by long usage andrecognised by other states like Great Britainand Sudan, and that the Nile Water treatieshave been declaratory of internationalcustomary law relating to fluvial law.

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two years within which to re-negotiatetreaties entered into on her behalf by theUnited Kingdom. By a communication tothe Secretary-General of the UnitedNations dated March 25, 1964, the PrimeMinister of Kenya made the followingdeclaration on the subject of succession oftreaties extended or applied to Kenya bythe Government of the United Kingdomprior to independence:

“In so far as bilateraltreaties concluded orextended by formerKingdom on behalf of theterritory of Kenya or validlyapplied or extended bythe former to the territoryof the latter areconcerned, theGovernment of Kenya iswilling to be a successor tothem subject to thefollowing conditions:

a)That such treaties shallcontinue in force for aperiod of two years fromthe date of Independence(i.e. until December 12,1965)

b)That such treaties shall beapplied on a basis orreciprocity.

c)That such treaties may beabrogated or modified bymutual consent of theother contracting partybefore December 12,1965.

At the expiry of theaforementioned period oftwo years, theGovernment of Kenya willconsider these treaties,which cannot beregarded as survivingaccording to the rules of

“It seems doubtful that the1929 agreement wasseriously regarded or evenintended as permanent inthe sense that it wouldbind all successor states inperpetuity” (page 143).

Be that as it may, such opinions expressedby learned publicists create the impression,and encourage the interpretation that theNile Water agreements are binding andvalid, either because of their territorialcharacter, or because it was the intentionof the high contracting parties that the newsovereign states would be automaticallybound by such treaties.

(iii) The Uncertain Position of SomeRiparian StatesSome Nile Riparian Countries have spokenstrongly and consistently on the Nile WaterTreaties, making it clear that they are notbound, and the treaties are not valid. Thesecountries include Tanzania, Ethiopia,Sudan (on the 1929 Agreement) andBurundi. But there are states on the Nilebasin whose positions have been ratherambiguous. A good example of such a stateis Kenya.

Even before independence, it was reportedthat “the local legislative councils of theterritories (of East Africa, Kenya included)have indicated their dissatisfaction at whatthey consider to be the United Kingdom’sinadequate international expression of theirinterests as upper riparians” as regards theNile Water treaties (Garretson, 1960:144).

Then at independence, Kenya adopted theNyerere doctrine and declared her intentionnot to be bound, giving a grace period of

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Nile Water Treaty and the Owen FallsAgreement. Godana (1985) takes the viewthat the 1929 Agreement has “survived”.O’Connell (1967) and others would takethe view that such treaties are binding onsuccessor states because of their “territorialcharacter”. However, the reasons adducedbelow make these treaties as invalid as anyother colonial era treaties.

Secondly, it is clear from the discussion inchapter IV that the strongest reason forclaiming that the Nile Water treaties arebinding is the doctrine of dispositive treaties.But it has already been shown that there isinsufficient evidence for the existence of sucha category of treaties as an exception to thegeneral rule of non-transmissibility.

Moreover, in the absence of the doctrine ofdispositive treaties, some other basis for thesurvival of the Nile water agreements mustbe demonstrated. These alternative theoriescould be servitudes, acquiescence or the ideaof law-creating treaties (Lester, 1963). Butnone of these have been shown to be thereason for the survival of the Nile treatiesand authorities are in agreement that thesetheories are inapplicable to the case of theNile water agreements.

Thirdly, it has been implied by Egypt andsome publicists that the validity of the Nilewater agreements, their devolution onsuccessor states, and their being binding inperpetuity is inferred from the intention ofthe parties. It is sometimes suggested thatthe description of a treaty as localised mayrefer to the intention of the high contractingparties with regard to the effect upon thetreaty of alienation of territory to which it

customary internationallaw as having terminated.The period of two years isintended to facilitatediplomatic negotiations toenable the interestedparties to reachsatisfactory accord on thepossibility of thecontinuance ormodification or terminationof the treaties” (Mutiti,1976:114).

But recently, at a water conference inNairobi, the Minister for WaterDevelopment, Mr. Kipngeno Arap Ngeny,inexplicably stated that the 1929 Nile WaterAgreement was binding on Kenya”(DailyNation, Saturday 23 March 2002, page 4).Some top government officials have evendenied the existence of such treaties.

This kind of ambivalence encourages theassumption and belief that the EgyptianGovernment’s position on the Nile is thetrue and legal position.

5.1 The Case AgainstThe thesis of this paper is that the NileWater agreements concluded during thecolonial era are not binding on the successorstates of the Nile basin and that this is theposition in international law as buttressedby the practice of the states. The followingreasons support this thesis.

First, the majority of commentators, withthe distinct exception of Egyptians havecome to the conclusion, or taken theposition that these treaties are not binding(see Godana, 1985:144-157). The onlycontroversial cases appear to be the 1929

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doctrine on state succession to treaties andhave thus refused to be bound. Availableevidence also shows that states on the Nileare taking unilateral decisions (or sub-basinapproaches towards) in the utilization anddevelopment of Nile water resources.

Lastly, and independently of the above, theconduct of Egypt with regard to theutilisation of the Nile Waters raises seriousdoubts about her capacity to bind co-riparians to their treaty and customary lawobligations. Writing in 1958, Pompesubmitted that the upper-basin states,already before their independence,

“Could certainly not beheld to the obligationswhich they undertooktowards Great Britain bythe aforementionedagreements of whichGreat Britain asadministering powerundertook towards Egyptby the 1929 agreementwith regard to theconstruction of worksaffecting the Nile flow, ifEgypt, or for that matterthe Sudan were toconstruct dams whichwould change the naturalconditions of the Nile Basinto the seriousdisadvantage of theupstream states.” (Pompe,1958:287, Godana,1985:146-7).

In this connection, the building of theOwen Falls Dam (resulting in a rise of twoand a half meters in the level of LakeVictoria), the Jonglei Canal project andparticularly the diversion and piping of Nile

has been specifically applied, and that suchintention might be

“that the new sovereignwill automatically bebound by the treaty”(Lester, 1963:490). But theattitudes of Egypt and theUnited Kingdom and theprovisions in the treaties donot evince suchan”intention.

Fourthly, there is the doctrine of rebus sicstantibus. This doctrine asserts that ifcircumstances, which constituted anessential basis of the consent of the partiesto be bound by a treaty, undergo such far-reaching changes as to transform radicallythe nature and scope of obligations still tobe performed, the agreement may beterminated on the initiative of a party. It issubmitted that the changes introduced bythe decolonisation process and theemergence of independent states in areaswhich were formerly territories underBritish administration are of suchfundamental importance as to permit theoperation of the doctrine of rebus sicstantibus, and that the declarations of thenew states to the effect that the treatiesentered into by former colonial powers ontheir behalf does not bind them is theirinitiative to terminate these treaties. Nilewater agreements could, therefore, notsurvive colonialism.

Fifth, state practice is inconsistent with anyclaim of validity of the Nile water treaties.To this end, Great Britain had adopted theattitude that these treaties should be re-negotiated, and all states on the Nile basin(except Egypt) have adopted the Nyerere

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water to Sinai Desert. (Okidi, 1999,Mbaria, 2002), and its reported sale to Israelwould appear to be conduct that shouldrelease the upper riparians from anyobligation towards Egypt. If Egypt can doas she pleases with the water, why shouldthe other riparians be restricted?

The position adopted by Egypt on the legalstatus is dictated more by self-interest thanby international law and state practice.That may explain her frequent resort tothreats of military action and other “sabre-rattling behaviour.”

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applicable to international rivers or othershared water resources, in the absence ofparticular law in the form of treaties. Thesedoubts have now been dispelled.

But such general law as has recentlydeveloped is not yet a fully-fledged system,as uncertainty remains on the scope ofspecific principles or rules. (Godana,1985:135).

International law is particularly contentiouson the issue of territorial sovereignty ininternational relations arising from the non-navigational uses of watercourses. Asummary of the contending theories ofwater rights illustrates the problem. Theessential point to note here is that due tothe underdevelopment of international law,states are able to assert an almost infiniterange of contradictory and mutuallyexclusive doctrines and principles whenevertheir interests demand that they do so.

There are two conflicting water rightstheories known to international law.These are the doctrine of absoluteterritorial sovereignty (“the HarmonDoctrine.”) and its antithesis, theabsolute territorial integrity doctrine.Absolute territorial sovereignty doctrineholds that a state has the right to dowhatever it chooses with the waters thatflow through its boundaries, regardless ofits effect on any other riparian state.Under this doctrine, a lower riparian hasno recourse but to hope for cooperationfrom the upper riparian or threatenmilitary action.

VI. THE NILE: IN SEARCH OF A LEGAL REGIME

The import of the conclusion that the NileWater Treaties are no longer binding andoperational is that only post-colonialagreements can be said to be valid. The onlysuch treaty is the 1959 agreement for thefull utilisation of the Nile waters. Thisagreement is a bilateral arrangementbetween Sudan and Egypt, which does notbind or affect the other riparian states ofthe Nile. Thus, the legal regime governingthe utilisation of the waters of River Nile iscustomary international law. As theinternational law commission advised:-

“In the absence ofbilateral or multilateralagreements, memberstates should continue toapply generally acceptedprinciples of internationallaw in the use,development andmanagement of sharedwater resources”(Biswas,1993:175).

What then does international law say aboutshared water resources?

6.1 Customary International LawInternational law concerning internationalfresh water resources has been vague andgenerally not accepted by states (Kukk andDeese, 1996:52). International water lawas one of the new areas of the law of Nationshas not yet fully coalesced into firmprinciples and rules. The problem here isnot just one of lacunae in the law. Untilvery recently, there was doubt as to whetherthere were any principles and rules ofgeneral international law, which were

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Writers, state practice and jurisprudencehave all consecrated this theory, which isgenerally accepted today (Godana,1985:40). It is the overall position ofinternational law then, that while eachstate enjoys sovereign control within itsown boundaries where internationaldrainage basins are concerned, it may notexercise such control over the portions ofsuch basins located in its territory withouttaking into account the effects upon otherbasin states.

The customary international law conceptof reasonable or equitable utilisation hasnow been granted the status of law by theUnited Nations …. on the Law of the non-navigational uses of InternationalWatercourses adopted in 1997 (36 I.L.M.700). Article V of the convention statesthat parties shall utilise an internationalwatercourse in an equitable and reasonablemanner. Article VI then gives the factorsto be considered in determiningreasonableness. These are “all relevantfactors and circumstances, including”:-

(a) Geographic, hydrographic,hydrological, climatic, ecological andother factors of a natural character;

(b) The social and economic needs ofthe watercourse states concerned;

(c) The population dependent on thewatercourse in each watercourse state;

(d) The effects of the use or uses of thewatercourses in one watercoursestate on other watercourse states;

(e) Existing and potential uses ofthe watercourse;

(f ) Conservation, protection,developments and economy of useof the use of the water resource of

Absolute territorial integrity is the oppositeview. Under this doctrine, an upper riparianmay not harness a river if this would harma lower riparian. Every state must allowrivers to follow their natural course; it maynot divert the water, interrupt or artificiallyincrease or diminish its flow. The doctrinereflects the claim that there is a principle ofgeneral international law that substantiallyrestricts the water uses of the upstream state.

As would be expected, upper riparians havebeen quick to adopt the absolute territorialsovereignty doctrine. On the Nile Basin,Ethiopia has consistently subscribed to theHarmon Doctrine (Godana, 1985:33-4,Bruhacs, 1993:44). On the other hand,absolute territorial integrity is the commonposition of lower riparians. On the NileBasin, Egypt has persisted in asserting thisdoctrine (Lipper, 1967:18).

Many scholars believe that both absoluteterritorial sovereignty and absoluteterritorial integrity are untenable as trans-boundary water-sharing regimes, andneither is generally accepted as a norm ofcustomary international law.

Therefore, a third approach, essentially acompromise position between the two, hasbeen developed. This is the limitedterritorial sovereignty doctrine, also knownas the limited territorial integrity doctrine.Under this doctrine, every state is free touse the waters flowing on its territory, aslong as such utilisation does not interferewith the “reasonable utilisation” of waterby other states. In short, states havereciprocal rights and obligations in theutilisation of the waters of theirinternational drainage basins.

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therefore, be managed effectively throughthe use of general rules universally appliedto all watercourses. The particular characterof international watercourses requires theconclusion of treaties, preferably bilateralor restricted multilateral treaties.

The second is the problem of reciprocity.International law has been based uponasymmetry of obligations, on mutualadvantages granted by the states to eachother on the basis or reciprocity. In thecase of international watercourses, therespective states are in an unequalsituation, as a consequence of the relativeunidirectional character of the relevanttrans-frontier effects.

This upstream/downstream relationshipcreates a permanent situation of conflict,and makes international law-makingdifficult. The particular character ofinternational watercourses essentiallyrequires bilateral law-making but theabsence or limits of reciprocity hereconstitutes a serious obstacle. Anassumption has usually been made that anupstream state does not need theestablishment of international legal rules onaccount of its favourable situation (beatipossidentes). But this has led to overconcentration on the problem of lowerriparian. This leads to the complaint thatinternational law “has focused on theconcerns of downstream states withoutproviding real incentives for upstreamstates” (Lupu, 2000:366).

In 1997, the United Nations adopted theConvention on the Law of the Non-Navigational uses of InternationalWatercourses. But the convention, which

the watercourse and the costs ofmeasures taken to that effect;

(g) The availability of alternatives, ofcomparable value, to a particularplanned or existing use.

However, the adoption of the limitedterritorial sovereignty doctrine ininternational law has not solved theproblem of water rights in internationalwatercourses. The main reason why thisdoctrine presents complications is that thedefinition of “reasonable” is unclear:-

“The substantive law onthe utilisation of sharedwater resources is definedin the vague language ofthe doctrine of equitableutilisation and offers littleguidance to states on howthey may proceed lawfullywith the utilisation of“thesewaters in their territories”(Wouters, 1997).

The consensus of opinion appears to be thatcustomary international law is not acomprehensive framework for theregulation of the utilisation of internationalwatercourses. The law is underdevelopedand vague, with weak or non-existentmechanisms for enforcement.

Two other inherent limitations have beennoted. The first is that each internationalwatercourse constitutes a specific unitwithout an equal counterpart and withdisparate types of hydrologic, economic andpolitical conditions. In other words,international watercourses have a particularcharacter from a geographic, economic,social, political and legal point of view(Bruhacs, 1993:53). They cannot,

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structure or a restricted multilateral treatyregime or both. Writing in 1960, Garretsonobserved as follows:

“Nearly all thecommentators on theproblems of the fulldevelopment of the Nilebasin have concludedtheir various analyses witha suggestion in one form oranother of the need for aNile river Basin Authority orAdministration” (1960:144)

This idea is supported by Godana (1985),who points to the realisation that the fulldevelopment of the Nile can only be madepossible through agreements which areconcluded between all the basin states andin which all interests are taken into account.He then adds:

“Basin states are bound togain much from thecreation of acomprehensive Nile BasinCommission serving as aninstitutional vehicle forcooperation. Above all,such a commission wouldensure cooperation in therational planning,conservation anddevelopment of resourcesof the basin as a whole”(page 264).

Okidi (1999) is also in favour of aninstitutional structure for cooperation inthe management of the Nile. But a basinwide institution for the management ofthe Nile has never been established. Infact, the existence of sub-basin

attempts to modify and develop norms ofcustomary international law, is only a partialresponse to the limitations of internationalwater law.

The convention adopts the vague conceptof “reasonable and equitable” use (Article5). It then pins its faith on the negotiationof “watercourse agreements” as theinstitutional and normative framework forregulating the use of international waters(Articles 3 and 4). In other words, it doesnot add anything to the law as it existedbefore 1997, and most commentators donot think it provides a basis for regulatingthe use of international watercourses (Kahn,1997, Hey 1998).

The weakness of the customaryinternational legal regime has created orencouraged interest in the development ofother approaches to the management ofshared water resources. An interesting oneis based on the theory of community ofinterests in the waters. Here, internationalborders would be ignored and the riverbasin would be administered as a collectivewater resource by an internationalinstitutional structure. A single state wouldneed cooperation from its co-riparians tomake any use of the shared water (Godana,1985:48-9, Cohen, 1991).

At this stage it may be appropriate toconsider the situation of the Nile.

6.2 The Case for a Nile BasinCommissionThe management of the Nile watersrequires either an international institution

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The imperative of an internationalinstitutional structure for the managementof international water resources is arrivedat by Beavenisti (1996) through a differentroute: the logic of collective action. Thebasic argument is simple. Internationalrivers are a unique type of good. Unlikeinternal resources, controlled by a singlestate, they are not a purely public good towhich all states enjoy potentiallyunrestricted access, like the high seas, themineral resources of the deep seabed, theelectromagnetic spectrum and space.Freshwater resources that traverse politicalboundaries are a collective good to whichonly the riparian states enjoy access. Eventhough other states are excluded from usingthem, the riparian states still need toregulate their respective rights andobligations. To obtain the optimalutilisation of these resources, the riparianstates must act collectively.

Benvenisti’s approach is useful in anothersense. It explains why cooperation throughcommon action has been difficult toinstitutionalise, and demonstrates theimportance of international law inencouraging it. Again the proposition isstraightforward. The classical distinctionamong types of goods in economicliterature is between “pure public”and”“pure private”.

Pure public goods are goods whose benefitsare non-excludable and non-rival. They arenon-excludable because it is impossible orprohibitively costly to prevent outsidersfrom gaining access to them. They are non-rival because a user’s consumption of a unitof that good does not detract from itsbenefits to others. In contrast, the benefits

institutional arrangements notwithstand-ing (Kasimbazi, 1998):-

“The pursuit in the Nilebasin of nationalist endswith national means withinnational frontiers in thehope that regional andinternational difficultiescan be avoided”.

remains the typical approach of the Nilebasin states (Garretson, 1960:144).

The importance of river basin organisationshas been emphasized by Kukk and Deese(1996). According to them, one reasonwhy political tensions and conflict arecommon along some international riversis the lack of river basin organisations.Where such organisations are establishedin water scarce areas, they provide ameans for voicing and resolving waterissues without resort to force.

A famous example is the Organisation forthe Development of the Senegal River(OMUS). It is said to have beeninstrumental in averting internationalconflict among the riparians, and to havefostered such strong cooperation amongthem as joint owners of all major river worksalong the basin that it is used as a model bythe United Nations and the World Bankwhen developing plans for managing otherbasins (Rangeley, 1994).

Establishing an international river basinorganisation, authority, or commission isone of the best solutions for preventing andresolving water conflicts because it engageswater scarce as well as water rich countriesin negotiations.

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excluding outsiders from using common-pool resources gives the limited number ofinsiders the opportunity to coordinate theiractivities in the interest of the optimal andsustainable use of the water, and therebyavert a tragedy of their commons.Why then, would they not cooperate toavert a tragedy of their commons?

Since different states enjoy access to sharedfreshwater, they face a “collective actionproblem”. Each has an interest in gettingmore out of the resource, and these interestsconflict with each other. The key tocooperation lies in the solution of thecollective action problem.

In this regard, it is possible to identify areaswhere international law may proveinstrumental in enhancing states’ willingnessto cooperate, and there are at least three suchareas: direct interaction, substantiverequirements and effective institutions.

First, by insisting on negotiations as thebasis for any arrangement, the law can prodthe riparians to establish direct interaction.

Secondly, the law can prescribe minimalstandards for water allocation, waterquality and the sustainable developmentof the resource.

Finally, the law may offer riparianscontemplating cooperative institutionalmeans of enforcing commitments andensuring long-term interdependence(Benvenisti, 1996:400).

However, cooperation can only trulyemerge from a genuine realisation of shared

of a private good, such as a loaf of bread,are fully excludable and rival. The user mayprevent others from using it and theconsumption of any part detracts fromthe whole. Positioned between pureprivate and pure public goods are twoother types of goods;

(a) Impure public goods that are non-excludable, yet rival, which may beconsumed by all who gain accessto them but whose consumptiondetracts from the consumption ofothers (for example, fisheries in theoceans, open-access pastures), and

(b) Common pool resources, which arepartially excludable and rival.

International freshwater resources, to whichonly the riparian states enjoy access forpurposes other than navigation, are anexample of common-pool resources. Theirbenefits are partly excludable. In contrastto open-access commons, such as high seasfisheries and the electromagnetic spectrum,non-riparians have no access to the waterresources and cannot benefit form themdirectly. Their benefits are also rival, sinceany unit of water diverted or polluted byone riparian reduces the amount availableto the other riparians or its quality.

Both impure public goods and common-pool resources are susceptible to the tragedyof the common “syndrome” in which eachof the appropriators receives direct benefitsfrom its unilateral act, while the costs ofthe act are shared by all (Harding, 1968).

There is, however, a crucial distinctionbetween common-pool resources andimpure public goods: the possibility of

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utilisation of shared water resources. Notonly because customary international lawis underdeveloped, but also specificallybecause the state of the law requires andrecommends it, restricted multilateraltreaties must be negotiated for the majorinternational river basins of the world. Thishas been accomplished in the case of mostbasins. The Nile is a curious exception.

In negotiating a multilateral treaty, thebargaining is going to be between upperriparians and lower riparians. Thecollective and joint interests of theseupstream/downstream countries dictatethis. East African countries shouldprepare for this bargaining.

interest in the water resource. Thepracticality and inevitability of negotiationbetween upper and lower riparians cannotbe over-emphasised. In the case of the Niletherefore, the states must address their“collective action problem” instead ofbasing their claims on conflicting andoutmoded theories of water rights, orhistorical relics.

6.3 The Case for a RestrictedMultilateral TreatyAs demonstrated above, international lawis too general and inchoate to address theproblems of particular international basins.At the same time, collective action isinevitable in the promotion of peaceful andsustainable international cooperation in the

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The need to negotiate a legal andinstitutional framework for themanagement and utilisation of the watersof the Nile has been canvassed in this paper.Such a “framework” should take theinstitutional form of a Basin Organizationand the normative form of a restrictedmultilateral treaty. The states in the EastAfrican region need to take a commonposition on the Nile question, and moreimportantly to develop that position inpreparation for negotiations with otherriparian states.

7.1 The Case for a CommonEast African PositionThe logic of a common East Africanposition on the Nile question is dictatedby a number of considerations. Theseinclude the pact signed by Egypt and Sudanin 1959, the fact that the East Africancountries are upper riparians, the idea ofregional integration, their sharing of LakeVictoria, the history of sub-basin initiativesand the war in Sudan.

(a) The Egyptian-Sudanese Pact (the1959 Treaty)In 1959 Egypt and Sudan signed anagreement, (“The 1959 Agreement for theFull Utilisation of Nile Waters”) whichguaranteed that 55.5 billion cubic metersper year would flow into Egypt without anyhindrance from Sudan. The agreement alsoallowed Egypt to construct the Aswan Damfor “long term” water needs. Mostimportantly, the agreement was a pactbetween the two countries to act together,and against the upper riparian states of the

Nile. Article V, in purporting to recognisethe rights and interests of these other co-riparians provided:

“Since other ripariancountries of the Nilebesides the Republic ofthe Sudan and the UnitedArab Republic claim ashare in the Nile waters,both republics agree tostudy together theseclaims and adopt a unifiedview thereon”.

This commonality of interest expressed inthe form of a binding commitment by thetwo states dictates that other states withcommon interests should also take acommon position on Nile waters interests.As Okidi (1999) has observed”:-

“Since Egypt and Sudanhave retained theircommitment for acollective bargainingposition, it may beappropriate for Kenya,Tanzania and Uganda,and possibly Rwanda andBurundi to have acommon position” (pages42-3).

(b) The Upper Riparian ScenarioThe interest conflict in sharinginternational rivers is between upperriparians and lower riparians. As alreadyindicated, the problem lies in thediametrically opposed theories of waterrights, which these two groups of riparianstend to take.

VII. THE NILE QUESTIONS: IMPLICATIONS FOR EAST AFRICA

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these”“new” post-colonial states could notassert an interest in the waters of the Nilebefore they were born into statehood.

The upstream/downstream relationshipbetween the two groups of riparians, andtheir unequal situation, dictates that EastAfrican countries should develop aposition that is common as amongstthemselves, but may be different fromthat of the lower riparians.

(c) Regional IntegrationThe East African region, which shares acommon colonial history, has beenexperimenting with various forms of regionalcooperation since the end of the SecondWorld War. These efforts have resulted in theestablishment, by treaty, of the East AfricanCommunity, whose partner states are Kenya,Uganda and Tanzania.

The objectives of the community are todevelop policies and programmes aimed atwidening and deepening cooperationamong the East African states in political,economic, social and cultural fields,research and technology, defence, securityand legal and judicial affairs, for theirmutual benefit (Article 5). The PartnerStates of the community undertake toestablish among themselves a customsunion, a common market, subsequently amonetary union and ultimately a politicalfederation. Clearly, the East Africanregion will be transformed into a singlepolitical unit for purposes of the exerciseof sovereignty.

In matters relating to natural resources, thecommunity is to ensure “the promotion ofsustainable utilisation of the natural

As a general rule, upper riparians insuccessive rivers have asserted claims toindividual property rights in the part of theriver flowing in their territory (e.g. theHarmon Doctrine), while lower riparianshave made the opposite claim, insisting onthe principle of non-interference with thenatural flow of the river in their territory.

The “inherent conflict” is exacerbated bythe problem of absence reciprocity in thesharing of successive rivers, caused by theunidirectional flow of trans-boundaryeffects. Upper riparians are expected tosacrifice for the benefit of lower riparianswho do not bear responsibility for the costs.For example, a rule forbidding causingharm to co-riparians in the use of a sharedriver benefits lower riparians, andparticularly the lower most, at the expenseof upper riparians. It is difficult to see whatthe lower riparian can do to cause harm tothe upper riparian.

For the case of the Nile, an accident ofhistory has complicated the relationshipbetween upper and lower riparians evenfurther. Historically, the lower mostriparian started using the waters of theNile earliest - “from antiquity”. It waslater followed by the next (Sudan) inasserting interest in the use of the sharedwaters. The upper riparians meanwhilebecame states as a result of colonisationat the end of the 19th Century, emerginginto full statehood after 1959.

Although other civilizations andpredecessor states living on the Nile Basinmust have relied on the waters of the Nilefrom antiquity (some are actually culturallyand linguistically identified as “Nilotics”!)

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African states to take a common positionon the utilisation and management of theNile waters resources.

(e) Sub-basin InitiativesThe importance of sub-basin initiatives inthe management of the Nile basin resourceshas been formally acknowledged by scholarsand commentators on the subject(Kasimbazi, 1998). In the absence of abasin-wide agreement on the utilisation ofthe Nile waters, a number of sub-basininitiatives have been developed by like-minded co-riparians. These include the1959 Agreement between Egypt and theSudan and the development projectsinitiated under its auspices.

In the East African region, the sub-basininitiatives most relevant to the utilisationof the Nile waters are the Kagera BasinOrganisation, the Lake VictoriaEnvironment Management Programme(LVEMP) and the Lake Victoria FisheriesOrganization (LVFO). The agreementestablishing the Kagera Basin Organisationwas concluded in 1977 between Tanzania,Rwanda and Burundi. Uganda acceded tothe treaty in 1981 (Godana, 1985: 191-3;Kasimbazi, 1998: 29-30).

The agreement is concerned with theestablishment of institutional frameworkfor cooperation of the drainage basin’s waterand related resources, including water andhydro-power reserves development,furnishing of water and water-relatedservices for mining and industrialoperations; the supply of drinking water,agriculture and livestock development,forestry and land reclamation, mineralexploration and exploitation, disease and

resources of the Partner States and thetaking of measures that would effectivelyprotect the natural environment of thePartner States” [Article 5(3)], and thePartner States “agree to take concertedmeasures to foster cooperation in the jointand efficient management and sustainableutilisation of natural resources within thecommunity” [Article 111(1)].

Among other things, the Partner Statescommit themselves to “adopt commonregulations for the protection of shared aquaticand terrestrial resources” (Article 114).

The East African States are thus, under alegal obligation to act in common withregard to natural resources like water. Thisobligation arises from their membership inthe East African Community.

(d) Lake VictoriaThe three East African countries share LakeVictoria, a common-pool resource. The lakeis an acknowledged source of the WhiteNile, a reservoir of water that drains theentire East African region.

Under the terms of the East AfricanCommunity Treaty, the Partner States areunder a legal obligation to strengthenregional natural resources managementbodies, and more specifically to establish abody for the management of Lake Victoria(Article 114). The three East African stateshave also established by a treaty concludedin 1994, the Lake Victoria FisheriesOrganization Treaty.

This joint ownership of Lake Victoria andthe common approach to the managementof its resources is one other reason for East

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Membership in a sub-basin initiative shouldconstitute an identifiable interest, whichcan be collectively canvassed and advancedas against non-member co-riparians.

(f) The War in SudanThe civil war in Sudan is a complex conflict.It is at once a war of liberation for theSouthern black, Christian Africans againstthe perceived domination by NorthernMuslim Arabs and a struggle for the controlof sovereign resources of the Sudan, whichinclude land, oil and water. It could leadto the creation of another state on the Nile,should the South succeed in getting anacceptable measure of self-determination.It has direct implications on the security ofthe larger region, the Great Lakes and theHorn of Africa from East Africa to Egyptin the sense that conflict in the Sudan isbound to “suck in” the neighbouring statesand populations. The war in the Sudan alsohas grave implications for the environmentand the utilisation of natural resources inthe region.

One country, which cannot claim neutralityin the Sudanese conflict is Egypt, becausethe war has direct impact on the 1959Agreement with Sudan. Some of thedevelopment projects envisaged by theagreement, like the Jonglei canal project,have had to be suspended because of “rebelactivity”. It must also be remembered thathaving signed a pact with Sudan on theutilisation and apportionment of the Nilewaters, Egypt cannot possibly be willing torisk the dismemberment of Sudan on theNile Basin, which could turn out (in factwill turn out) to be hostile to her interests.

pest control, transport andcommunications, trade, tourism, wildlifeconservation, fisheries and aquaticdevelopment and protection of theenvironment (Article 2).

The Lake Victoria EnvironmentManagement Programme was establishedby an agreement that was singed by Kenya,Uganda and Tanzania on August 5, 1994.The agreement envisages the creation of aprogramme that would strengthencoordination among the three states in themanagement of the lake resources includingwater quality and land use.

The rationale of the programme was thatresources used by one riparian stateimpacted on the activities of other riparianstates. For that reason, resourcedevelopment and management by a riparianstate within national jurisdiction has toproceed and be coordinated within aregional cooperation framework backed bypolitical commitment from other riparianstates: strategies, policies and action plansneed to be coordinated with reference tobroad regional objectives and guidelines.

The Lake Victoria Fisheries Organisationwas established in 1994 through aconvention signed by Kenya, Uganda andTanzania. The main objective was “topromote the proper management andoptimum utilisation of the fisheries andother resources of the Lake” (Article 2).

The importance of sub-basin initiatives liesin what Okidi (1999) describes as theirgradual reworking to constitute integratedactivities for Lake Victoria and River Nile.

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then the conservation, management andutilisation of the lake’s basin resourcescannot be qualified or restricted withreference to the requirement of the Nile.

The third issue of relevance is compensationfor harm and damage arising from previoususe and developments. The treatyarrangements between Egypt, and GreatBritain and the Sudan allowed constructionof works by Egypt in foreign territories.Dam development, especially Aswan andOwen Falls, were some of the direct results.These developments have had adverseeffects on the upper riparian states: floodingof Sudanese territories and raising of thelevels of the waters of Lake Victoria. In thecase of Owen Falls Agreement, these adverseeffects were anticipated by the parties to theOwen Falls Dam Agreement for it wasprovided in the agreement that Egypt: –

“— will bear the cost ofcompensation in respectof interests affected by theimplementation of thescheme or, in thealternative, the cost ofcreating conditions whichshall afford equivalentfacilities and amenities tothose at present enjoyedby the organizations andpersons affected and thecost of works orreinstatement as arenecessary to ensure thecontinuance of conditionsobtaining before thescheme comes intooperation —-“ (Godana,1985:178).

As a direct result of the Owen Falls DamProject, the level of the Lake Victoria waters

Due to the complexity of the conflict inSudan, and its possible implication forthe security and strategic interests of theEast African region, a common positionon the conflict and on the Nile is logicaland justified.

6.2 The East African Position onNile WatersHaving established the importance andlogic of a common position on the Nile forthe East African countries, it is necessaryto identify the salient issues, which theircommon position should address.

The first issue a joint East African positionmust address is the water rights doctrine.As international law and state practiceremains conflicting and fractured on thisissue, East African countries must adopt oneof the competing doctrines for purposes ofbargaining. The obvious options, given thatthey are upper riparians, would be eitherthe Harmon Doctrine or the limitedterritorial sovereignty doctrine.

Another issue on which a position must betaken is the geographical and hydrologicalrelationship between Lake Victoria and theNile. The logic of a basin-wide approachto the development and management ofinternational water courses has been amplydemonstrated in the literature of this subject(e.g. Borne, 1972). But the decision to treatLake Victoria and the Nile as a single basinhas such important and far reachingimplications that a conscious policyposition must be adopted.

The essential consideration here is that ifLake Victoria constitutes a basin that isseparate from, and independent of the Nile,

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solving the political andeconomic tensions among(the region’s) riparianstates” (page 366).

Finally, as international fluvial law is stillin a state of evolution, all the Nileriparian states can expect to contributeto its development through therefinement and popularisation of variousdoctrines and theories.

East African States are uniquely placed in avantage position to challenge the stockassumptions that have tended toaccompany discussion of the legal regimeof the Nile. These stock assumptionsinclude the claim that Egypt has acquired“historic and natural rights” to Nile waterdue to long time usage; the mindset thatmeasures Nile waters in Khartoum orAswan Dam; the assumption that EastAfrican communities have not been relyingon Nile waters”“from antiquity”; the falsenotion that an ex-colony is a “successor”state to the metropolitan colonizer; and thecontradictory theories of sovereignty overwater resources.

6.2 ConclusionThe Nile question has fundamentalimplications for the upper riparian statesof East Africa. It is not sufficient for themto demonstrate that the treaties concludedby colonizing powers during the colonialperiod are no longer binding on them.What is required is a holistic doctrine oftrans-boundary water rights. Theunderdevelopment and vague nature ofinternational law offers an excellentopportunity for these countries to developa whole new position on international waterlaw, which can be applied to the Nile.

rose, causing material damage all aroundthe lake (Okidi, 1980; Godana, 1985:179).No compensation has been paid by Egypt.It is submitted that compensation fordamages arising from previous developmentand utilization activities on the Nile are alegitimate prerequisite to negotiations fora future regime for the regulation of theNile basin.

The fourth issue of concern is the problemof incentive. As upper riparian states, andconsidering the absence of reciprocity, whatcan East African countries demand fromthe lower riparian states, especially Egypt?Quite apart from the legal and moralobligation to share the cost of “maintaining”the quality of the Nile basin, it makes senseto demand a share in the resources of Egyptand Sudan in exchange for an “equitableutilisation” pact.

The need to offer some economic orpolitical benefit in exchange forcooperation in the utilisation of aninternational river has been discussed byLupn (2000). Downstream ripariansshould grant some incentive to theirupper riparian neighbours forcooperation. As Lupn (2000) complains:

“International law hasfaltered in settling this(Tigris-Euphrates) disputebecause it has focused onthe concerns ofdownstream states withoutproviding real incentivesfor upstream states. Unlesschanges are made to theinternational law on trans-boundary waters, it willcontinue to provide littleguidance in managing or

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In developing such a new framework, therewill be need and occasion for negotiationbetween upper and lower riparians, whoconstitute the natural protagonists in atrans-boundary water system. Since thelower riparians on the Nile (Egypt andSudan) have entered into a pact to bargaincollectively with and against the upperriparians, and since the interests of theupper riparians are fated to be similar, theEast African states have an interest in takinga common position on the Nile.

In identifying and articulating theirinterests, the East African states should bebold because international law on thissubject is in a state of flux and transition.The East African states may just be able tocanvass their interests while developinginternational fluvial law.

The major premise of this paper has beenthat the legal regime of the Nile hasconsisted of colonial era treatiesconcluded between Great Britain andEgypt, on the one hand, and other powersthat were in control of the upper reachesof the Nile Basin, and that this legalregime is no longer binding as the directconsequence of state succession andfundamental changes in thecircumstances of the state concerned.The Nile is, therefore, in urgent andserious need of a legal regime to regulatethe utilisation of its waters. Customarylaw cannot provide such a regime becauseof the vagueness and under-developmentof international fluvial (water) law. A newinstitutional and normative framework isrequired. Such a framework shouldconsist of a Basin Organisation and arestricted multilateral treaty.

VII. SUMMARY AND CONCLUSIONS

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REFERENCES

Batstone, R.K (1959). “The Utilisation of the Nile Waters””8 I.C.L.Q 523Benvenisti, E.W. (1996). “Collective Action in the Utilization of Shared Freshwaters:

The Challenges of International Water Resources Law” vol. 90”A.J.I.L. 384Berber, F.J. (1959). Rivers in International Law London: Stevens and Sons)Biswas, A.K. (1993). “Management of International Waters: Problems and

Perspectives: vol. 9 International Journal of Water Resources Development 167Brownlie, I. (1990). Principles of Public International Law, 4th Ed. (London: OUP).Bruhacs, J. (1993). The Law of Non-Navigational Uses of International

Watercourses (Dordrecht/Boston/London: Martims Nijhoff Publishers).Carrol, C.M. (1999). “Past and Future Legal Framework of the Nile River Basin”

12 Geo-Int’l Envt’l L. Res 269Cohen, J.E. (1991). “International Law and the Water Politics of the Euphrates”

N.Y.U Law Review 507Fahmi, A.M. (1986). “The Legal Regime of the River Nile” vol. 37”OZOV 51-70Garretson, A.H. (1960). “The Nile River System””in Proceedings of the American

Society of International Law (Washington D.C.)Gleick, P.H. (1963). “Water in the 21st Century” in Peter H. Gleick, ed.” Water in

Crisis (New York: CUP).Harding, G.J. (1968). “The Tragedy of the Commons” 162” Science 1243.Godana, B.A. (1985). Africa’s Shared Water Resources London: Frances Pinter and

Boulder Colorado: Lynne Rienner Publishers).Hey, E. (1998). “The Watercourses Convention: To What Extent Does it provide a

Basis for Regulating uses on International Watercourses?” 7 Rev. Eur. Communityand Int’l Envt’l Law 291

Kahn, J.C. (1997). “1997 UN Convention on the Law of Non-Navigational Usesof International Watercourses” Colorado Int’l Envt’l Law and Policy 178.

Kamau, John (2002). “Can East Africa win the Nile War?” Daily Nation 28 March2002, page 5.

Kasimbazi, E. (1998). “The Reference of Sub-Basin Legal and InstitutionalApproaches in the Nile Basin” vol. 5, No. 1 S.A. Journal of Environmental Lawand Policy 17-34.

Khadduri, M. et.al. “Other Jurisdictional and Territorial Issues” in M. Khadduri,ed. Major Middle Eastern Problems in International Law (Washington, D.C.:American enterprises Institute of Public Policy Research).

Kukk, C.L. and Deese, D.A. (1996). “At the Water’s Edge: Regional Conflict andCooperation over Fresh Water” vol. 1 UCLlA J. Int’l Law and Foreign Affairs 21– 64.

Lester, A.P. (1963). “State Succession to Treaties in the Commonwealth” vol. 12”I.C.L.Q. 475

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Lipper, J. (1967). “Equitable Utilization” in A.H. Garretson, et.al, eds. The Law ofInternational Drainage Basins.

Lupu, Y. (2000). “International Law and the Waters of the Euphrates and Tigris”vol.14.” The Georgetown Int’l Envt’l Law Review 349.

Mbaria, John (2002). “Revoke Obsolete River Nile Treaty” Daily Nation, 28 March2002, page 5.

McNair, A.D. (1961). The Law of Treaties (Oxford: ONP).Mutiti, N.A.B. (1976). State Succession to Treaties in Respect of Newly Independent

African Sates (Nairobi/Kampala/Dar es Salaam: E.A.L.B.).Myers, N. (1989). “Environment and Security”” Foreign Policy 29.O’Connell, D.P. (1956). The Law of State Succession (Cambridge: CUP).Okidi, C.O. (1980). “Legal and Policy Regime of Lake Victoria and Nile Basins”

vol. 20,” Indian Journal of International Law 395-447.Okidi, C.O. (1982). Review of Treaties on Consumptive Utilization of Waters of

Lake Victoria and Nile Drainage System” vol. 22” Natural Resources Journal161.

Okidi, C.O. (1994). “History of the Nile and Lake Victoria Basins Through theTreaties” in P.PO. Howell and J.A. Allan, eds, The Nile: Sharing a Scarce Resource(Cambridge: CUP)

Okidi, C.O. (1999). “Legal and Policy Considerations for Regional Cooperationon Lake Victoria and Nile River” JEPLA 1.

Pompe, C.A. (1958). “The Nile Waters Question” Symbolae Verzijl, the Prague.Smith, H.A. (1931). The Economic Uses of International Rivers (London: P.S.

King and Sam.Starr, J.R. (1991). “Water Wars” Foreign Policy 17.Sudan, Rep. Of (1975). Control and Use of the Nile Water in the Sudan (Sudan:

Ministry of Irrigation, Khartoum).Teclaff, L.A. (1967). The River Basin in History and Law (The Hague: Mastinus

Nijhoff ).Vali, F.A. (1958). Servitudes of International Law: A Study of Rights in Foreign

Territory, 2nd Ed. (London: Stevens).Wonters, P. (ed) (1997). International Water Law: Selected Writings of Professor

Charles B. Bourne (London/The Hague/Boston: Kluwer Law International).

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Annex I. THE POSITION OF THE NILE BASIN COUNTRIES ONTHE NILE WATER TREATIES

1. EGYPTEgypt holds the view that the Nile watertreaties are binding, and are merelydeclaratory of natural and historic rights,which she already has in respect to thewaters of the Nile. The agreements are,therefore, binding pending renegotiation,if at all.

2. ETHIOPIAEthiopia subscribes to the Harmon Doctrine,and holds the position that she is free to do asshe pleases with the waters within her territoryirrespective of the effects on co-riparian states(Kukk and Deese, 1996). Ethiopia furtherholds the view that treaties entered into byItaly and other powers, reportedly on herbehalf, do not bind her and are invalid(Godana, 1985).

3. TANZANIAOn the matter of the 1929 Nile WatersAgreement, the Government ofTanganyika, on 4th July 1962, wroteidentical notes to the governments ofBritain, Egypt and Sudan outlining thepolicy of Tanganyika on the use of thewaters of the Nile. The note read as follows:

“The Government ofTanganyika, conscious ofthe vital importance ofLake Victoria and itscatchment area to thefuture needs and interestsof the people ofTanganyika, has given themost serious considerationto the question that arises

from the emergence ofTanganyika as anindependent, sovereignstate in relation to theprovisions of the NileWaters Agreements on theuse of the waters of theNile entered into in 1929 bymeans of an exchange ofnotes between theGovernment of Egypt andthe United Kingdom.

As a result of suchconsiderations, theGovernment ofTanganyika has reachedthe conclusion that theprovisions of the 1929Agreement purporting toapply to the countriesunder British Administrationare not binding onTanganyika. At the sametime, however, andrecognising theimportance of the watersof the Nile that have theirsource in Lake Victoria tothe governments andpeople of all riparianstates, the Government ofTanganyika is willing toenter into discussions withother interested states andgovernments at theappropriate time, with aview to formulating andagreeing on measures forthe regulation and divisionof the waters in a mannerthat is just and equitable toall riparian states and tothe greatest benefit of alltheir peoples” (Seaton andMaliti, 973).

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“At present, two instruments govern theutilisation of the waters of Lake Victoriaand River Nile. These are;

1. The 1929 Nile Waters Agreementnegotiated between theGovernments of United Kingdom(on behalf of its colonies of Kenya,Uganda and Tanzania) and theGovernment of Egypt and,

2. The 1959 bilateral agreementbetween Egypt and Sudan.

Under the 1929 agreement the keyprovision that requires Kenya, Uganda andTanzania and even Sudan to use the watersof Lake Victoria and the Nile with theacquiesce of Egypt states that:

“Save for previousagreement with theEgyptian Government, noirrigation or power works ormeasures are to beconstructed or taken onthe River Nile or itsbranches, or on the lakesfrom which it flows so far asthese are in Sudan or incountries under Britishadministration, whichwould in such a manner asto entail prejudice to theinterest of Egypt, eitherreduce the quantities ofwater arriving in Egypt, ormodify the date of itsarrival, or lower its level.”

The 1959 Nile Agreement for fullutilisation of the Nile waters was explicitlybilateral to Egypt and Sudan. Consequently,in line with the general rule of internationalLaw, such a treaty creates neither rightsnor obligation for third States (i.e. Stateswhich are not parties to the treaty) as

And generally on bilateral treaties, Tanzaniamade the following declaration in 1961:

“As regards bilateraltreaties validly concededby the United Kingdom onbehalf of the territory ofTanganyika, or validlyapplied or extended bythe former to the territoryof the latter, theGovernment ofTanganyika is willing tocontinue to apply within itsterritory on a basis ofreciprocity, the terms of allsuch treaties for a periodof two years from the dateof independence. …Unless abrogated ormodified earlier by mutualconsent. At the expiry ofthat period, theGovernment ofTanganyika will regardsuch of these treaties,which could not by theapplication of rules ofcustomary internationallaw be regarded asotherwise surviving ashaving terminated”((Seaton and Maliti, 1973;Mutiti, 1976; Brownlie,1990:671).

4. KENYA.Kenya adopted the Tanzanian approach andposition on bilateral treaties, including theNile water treaties (Mutiti, 1976; Okidi,1982; Brownlie, 1990).

In addition, in 2002, the Minister for WaterDevelopment made a comprehensive policystatement on the utilisation of the watersof Lake Victoria and the River Nile. Thestatement said:

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as having terminated. Under Articles 17 &18 of the Vienna Convention 1978, a newState formed as a result of decolonisationis under no obligation to succeed to a treatyif it does not want to do so; it can start lifewith a “clean slate”.

The doctrine of “clean slate” is not a well-established customary international lawunder which the Convention has made thefollowing rules:

• A new State can succeed to amultilateral treaty, to which thepredecessor State was a party, bynotifying the depository that itregards itself as succeeding to thetreaty.

• A new state succeeds to a bilateraltreaty, which the predecessor statemade with another state, only ifthat other state and new state bothagree.

Kenya acknowledges and recognises that theuse of international shared water resourcessuch as the water of Lake Victoria and theNile River must be based on the followingprinciples and practice of international law:

• The Charter of the United Nationsand the sovereign rights of states toexploit the natural resources withintheir territories according to theirown environmental anddevelopment policies that arebalanced by general responsibilityto ensure that activities withintheir own jurisdiction do notharm the environment or causesignificant harm to other riparianstates or areas beyond the limitsof national jurisdiction.

Kenya. These agreements were concludedduring the colonial period and uponattaining independence, the governmentof Kenya made a declaration to themembers of the United Nations on thesubject of succession to Treaties extendedor applied to Kenya by the Governmentof United Kingdom and Northern Irelandprior to independence. This declarationprovided that;

“In so far as bilateraltreaties concluded by theUnited Kingdom on behalfof the territory of Kenya orvalidly applied orextended by the former tothe territory of the latterare concerned, theGovernment of Kenyasignifies its willingness to bea successor to themsubject to the followingconditions:

a)that such treaties shallcontinue in force forperiod of two years fromthe date ofindependence (i’e untilDecember 12, 1965);

b)that such treaties shallbe applied on a basis ofreciprocity;

c) that such treaties maybe abrogated ormodified by mutualconsent of the othercontracting party beforeDecember, 12, 1965 “.

At the expiry of the aforementioned periodof two years the Government of Kenya wasat liberty to consider those treaties, whichcannot be regarded as surviving accordingto the rules of customary international law

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Kenya, like other Lake Victoria and NileRiver riparian States would further want toadopt the following procedural rules thatgive states’ obligations in the utilisation ofthe water resources of the basin:

1. Environmental impact Assessment,to avoid, mitigate and minimiseadverse impacts as alreadycontained in Section 58 of theEnvironment Management andCoordination Act number 8 of1999, Laws of Kenya.

2. Education and public awareness, topromote awareness on theimportance of preserving theecosystem of the shared watercourse.

3. The duty to inform, consult andengage in good faith negotiationand to work out a solution thatobviates any expected significantharm as a result of any work donein the Lake Victoria Basin.

Such procedures would require theestablishment of institutional arrangementsthat encompasses the decision makingorgan as a summit of heads of States ofEast Africa Community for the LakeVictoria waters and possibly a NileWatercourse Summit of Heads of Statefor Nile W0˙ers in total, that defines theco-operation development policy andconsultative mechanism for theagreement being negotiated.

Kenya continues to explore whether havinga common position with other East Africancountries will serve our best interest ofenhancing Kenya’s negotiating position ofthe draft Nile basin agreement.

• The principle of appropriateequitable redress in cases of worksdone on watercourse causingsignificant harm to the interest ofany riparian State.

• The principle of equitable andreasonable utilisation ofinternational waters based on theconsiderations of socio-economicdevelopment, non-harmful andnon-wasteful use of water.

• The principles of natural rightsof all the states dependent on thesame watercourse.

• The concept of sustainabledevelopment that meets the needsof the present withoutcompromising the ability of futuregenerations to meet their ownneeds, as contained in theuniversally accepted and adoptedBrundtland report of 1987 andarticle 2 of the 1982 Rio Declaration.

• The need of involving allstakeholders to participate atappropriate levels of decisionmaking and management of waterresources during the agreement byall riparian states for the sustainableutilisation of waters of LakeVictoria and the Nile watercoursein general.

• The need to undertakeenvironmental audits for currentand previous projects touching onthe use of Lake Victoria watersincluding all bilateral projects inall the concerned states usingwaters of the lake, river Nile ortheir sources.

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5. UGANDA, BURUNDI ANDRWANDAThese countries also adopted the Tanzanianposition on bilateral treaties, including theNile water treaties (Mutiti, 1976; Okidi,1982; Brownlie,1990).

6. SUDANUpon attaining independence in 1956,Sudan refused to be bound by the 1929Nile Waters Agreement, therebycompelling Egypt to negotiate a newtreaty, the 1959 Agreement for the fullutilisation of the Nile Waters.

7. THE DEMOCRATIC REPUBLIC OFCONGOThe position of the Democratic Republicof Congo on the Nile Water Treaties isunclear as it has never been expressly stated.

(Kenya would, therefore, continue toparticipate in on-going negotiations for theNile Basin Co-operative Framework thatis being conducted under the Nile Basininitiative by the 10 riparian states. It isKenya’s hope that the negotiations wouldin due course result into an agreementgiving all the concerned countries theirequitable and reasonable shares of thewaters of Lake Victoria and the River Nile

In the meantime, Kenya will continue touse the waters from Lake Victoria Basin ina sustainable manner, taking into accountthe national development needs,environmental imperatives and adherenceto its obligations under international lawsas outlined above.

SOURCES:1) Mutiti, M.A.B. (1973). State Succession to Treaties in Respect of Newly Independent

African States (Nairobi: East African Literature Bureau).2) Seaton and Maliti (1976). Tanzania Treaty Practice3) Okidi, C.O. (1982) “Review of Treaties on Consumptive utilisation of waters of

Lake Victoria and Nile Drainage System” Volume 22, Natural Resources Journal162.

4) Godana, B.A. (1985). Africa’s Shared water Resources (London; Frances Pinter,Boulder, Colorado: Lynne Rienner Publishers)

5) Brownlie, Ian (1990). Principles of Public International Law (Oxford: OxfordUniversity Press).

6) Kukk, C.L. and Deese, D.A. (1996) “At the Water’s Edge: Regional Conflict andCooperation over Fress Water” vol I. UCLA Journal of Int’I Law and ForeignAffairs 21.

7) Corrol, C.M. (1999). “Past and future Legal Framework of the Nile River Basin”12 Geo.Int’l Envt’l L.Res -269

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PART II: THE NILE TREATIES

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PREAMBLE

FACTFILE ABOUT THE NILE RIVER

Mediterranean Sea the length of the Nileis 5584 km (3470 miles). From itsremotest headstream, the RuvyironzaRiver in Burundi, the river is 6671 km(4145 miles) long. From Lake Tana inEthiopia to the Mediterranean Sea, theNile is 4,588 km long.

The total length of the Nile, together with itstributaries, is about 3,030,300 kilometres.

Basin Area:There are ten basin countries on the Nile.These are Egypt, Sudan, Ethiopia, Eritrea,Uganda, Tanzania, Kenya, the DemocraticRepublic of Congo, Rwanda and Burundi.The area of the Nile Basin is 3,030,700square kilometres, distributed as follows:

1. Sudan - 1, 900,000 sq.km (62.7%)2. Ethiopia & Eritrea - 368,000 sq.km (12.1 %)3. Egypt - 300,000 sq.km (9.9%)4. Uganda - 232,700 sq.km (7.7)5. Tanzania - 116,000 sq.km (3.8%)6. Kenya - 55,000 sq.km (1.8%)7. D.R. Congo - 23,000 sq.km (0.8%)8. Rwanda - 21,500 sq.km (0.7%)9. Burundi - 14,500 sq.km (0.5%)

The population of the basin area isestimated to be about 160 million, whilethe total population of all the basincountries is about 300 million.

Dams:The major dams on the Nile are RoseiresDam, Sennar Dam, Aswan High Dam andOwen Falls Dam.

1. Geographical Features

Tributaries:The Nile is made up of three maintributaries. These are the White Nile, theBlue Nile and the Atbara.

Major Regions:Researchers believe that the Nile originated30 million years ago in the mid-Tertiaryperiod. Its headstream was probably theAtbara River. The river basin continued toevolve and now has seven major regions:

1. Lake Plateau of East Africa2. AI-Jabal (Mountain Nile)3. White Nile4. Blue Nile5. Atbara6. United Nile (North of Khartoum

in the Sudan and Egypt)7. Nile Delta.

Sources:The White Nile originates from the LakePlateau region of East Africa where severalheadstreams contribute to the Lake Victoriaand Lake Albert. The Ruvyironza, regardedas the ultimate source of the Nile, is one ofthe upper branches of the Kagera River.

The Blue Nile gathers its volume mainlyfrom the Ethiopian upstream of Lake Tana,some 2,150m (or 7,054 ft.) above sea level.

Length:The River Nile is the longest river in theworld. From Lake Victoria to the

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It has also been estimated that on average,59 per cent of the Nile flow is from theBlue Nile, 28 per cent from the White Nile,and 13 per cent from the Albara River(Shapland, 1997; Carroll, 1999).

Fourteen per cent of the White Nile flow isfrom the upper Nile states and the otherfourteen per cent is from the Sobat River.The Blue Nile’s contribution is the largestbut it is seasonal. Most of the flow comesin August, September, and October justafter the monsoon season in the Ethiopianhighlands. At those times the Blue Nile mayaccount for up to 90 per cent of the Nileflow, whereas in July, just prior to the wetseason, it may account for as little as 20 percent of the main flow of the Nile (Shapland,1997). The White Nile’s contribution onthe other hand, is small but steady.

The contribution to Nile flow also variesconsiderably among Countries. Ethiopiacontributes eighty - six percent of Nile flow,whereas Egypt contributes nothing. Theannual discharge of the Nile in units of 12milliards of cubic metres has been calculatedby Garretson (1967) as follows:

White Nile Down stream at LakeAlbert in Uganda - 2White Nile Downstream of theSudd in Southern Sudan - 1Sobat from South West Ethiopia - 1White Nile at Khartoum - 2Blue Nile at Khartoum - 4Atbara from Northwest Ethiopia - 1Main Nile at Sudanese/ Egyptian Border - 7

b) Loss of waterSignificant amounts of water are lost in theNile basin through evaporation and soakage.

II. Hydrological Features

a) Flow rates:The average discharge of the Nile is about300 million cubic metres per day. (seeGraph, Figure 1). Godana (1985) reportsthat as measured at Aswan, the averageannual flow of the Nile is 84 milliards ofcubic metres. Of this total, Bard (1959)estimates that 84 per cent is contributedby Ethiopia and only 16 per cent comesfrom the Lake Plateau of East and CentralAfrica. Garretson (1967) and Godana(1985) provide similar estimates.

Flow rate GraphBut as the flow chart diagram shows, whilethe flow of the White Nile is relativelyregular and stable throughout the year, theflow of both Blue Nile and the Atbara sub-systems fluctuates seasonally.

At its peak discharge in August to October,the Blue Nile swells to an enormoustorrential flow and accounts for some 90per cent of the waters passing Khartoum.But by April, it will have dwindled to one-fortieth of the flood discharge, to accountfor no more than 20 per cent of the waterspassing Khartoum.

Garretson (1967) estimates that at thepeak of its flood, the Blue Nile alonesupplies 90 per cent of the water passingthrough Khartoum, but in the lowseason, it provides only 20 per cent. Thus,according to Godana (1985), the WhiteNile at Khatoum provides only 40 percent of the river’s peak discharge, but atthe low flow accounts for four fifths ofthe total delta discharge.

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III. Economic AspectsPractically all the Nile basin states view theNile as a principal feature of theireconomies. The Nile and its resources areused for irrigation (principally by Egyptand the Sudan), hydroelectric powergeneration, water supply, f ishing,tourism, water transportation and theprotection of public health.

Egypt is the most dependent country onthe Nile. The Nile provides Egypt with anaverage of 55.5 billion cubic meters ofwater, or 86 per cent of the country’s usablewater. The Aswan Dam alone produces 1/3 of Egypt’s electricity. It is estimated thatEgypt relies on the Nile for 95 per cent ofits water needs.

Ethiopia is planning to construct, or is inthe process of constructing, a new facilityon the Blue Nile in order to supplyirrigation water for 1.5 million settlers inthe Western province of Welega and toprovide a steady source of hydroelectricpower for the country. The facility isexpected to divert 39 per cent of the BlueNile’s waters.

Sudan has also been increasing the numberof projects it is undertaking on the Nile withthe use of the Nile waters. These includeirrigation, dam construction, hydro-electricpower generation and canalisation. It is thesecond most dependent country on thewaters of the Nile. There is general evidenceof increased utilisation of Nile watersamong the riparian states. This is raisingthe prospects of conflict and water-scarcityin the region.

Some 812 billion cubic feet of water isbrought into Lake Victoria by those riversthat drain into it. This represents 15 percent of the water entering the lake, the other85 per cent doing so from precipitationdirectly onto the lake surface. Evaporationhelps to balance the water that drains intothe lake and continues to Lake Albert. Some85 per cent of the water leaving LakeVictoria does so through direct evaporationfrom surface and only the remaining 15 percent leaves by way of the Victoria Nile,which leaves the lake near Jinja in Uganda,and flows via the Owen Falls, Lake Kyogaand the Murchison Falls to join the outflowfrom Lake Albert.

Godana (1985) estimates that some 24milliards cubic metres of water flow downthe White Nile from Lake Albert and theEast African highlands, half of which is lostthrough intense evaporation and soakagein the Sudd.

An official Sudanese Government studyputs the total swamp losses at 42 milliardsof cubic metres (Sudan, 1975). In fact, theJanglei Canal project was intended to divertthe flow of the Nile in Southern Sudan toavoid the enormous evaporation losses,which occur there.

Lake Nasser, the second largest manmadelake in the world and the result of theAswan Dam project, loses 10 per cent ofits volume annually through evaporation.This is because of its location in themiddle of the desert.

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Figure 1Annual Flow Rate of the three Tributaries of the Nile

Source: http://www.wordbank.org

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GREAT BRITAINAND NORTHERN IRELAND

AND EGYPT

Exchange of Notes in regard to theUse of the Waters of the RiverNile for Irrigation Purposes.

Cairo, May 7, 1929.

Source: League of NationsTreaty Series, Volume 93-94 (1929)

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No. 2103. — EXCHANGE OF NOTES BETWEEN HIS MAJESTY’SGOVERNMENT IN THE UNITED KINGDOM AND THE EGYPTIANGOVERNMENT IN REGARD TO THE USE OF THE WATERS OF THE

RIVER NILE FOR IRRIGATION PURPOSES. CAIRO, MAY 7, 1929.

No. 1.

MOHAMED MAHMOUD PASHA TO LORD LLOYD.

PRESIDENCEDU CONSEIL DES MINISTRES.

CAIRO, May 7, I929.

EXCELLENCY,In confirmation of our recent conversations, I have the honour to communicate to your,

Excellency the views of the Egyptian Government in regard to those irrigation questions,which have been the subject of our discussions.

1. The Egyptian Government agrees that a settlement of these questions cannot bedeferred until’ such time as it may be possible for the two Governments to come to anagreement on the status of the Sudan, but, in concluding the present arrangements, expresslyreserve their full liberty on the occasion of any negotiations which may precede such anagreement.

2. It is realised that the development of the Sudan requires a quantity of the Nile watergreater than that, which has been so far utilised by the Sudan. As your Excellency is aware,the Egyptian Government has always been anxious to encourage such development, and willtherefore continue that policy, and be willing to agree with His Majesty’s Government uponsuch an increase of this quantity as does not infringe Egypt’s natural and historical rights inthe waters of the Nile and its requirements of agricultural extension, subject to satisfactoryassurances as to the safeguarding of Egyptian interests as detailed in later paragraphs of thisnote.

3. The Egyptian Government therefore accepts the findings of the I925 Nile Commission,whose report is annexed hereto, and is considered an integral part of the present agreement.They propose, however, that, in view of the delay in the construction of the Gebel AuliaDam, which, under paragraph 40 of the Nile Commission’s Report, is regarded as a counterpartof the Gezira scheme, the dates and quantities of gradual withdrawals of water from the Nileby the Sudan in flood months as given in article 57 of the Commission’s report be modifiedin such a manner that the Sudan should not withdraw more than 126 cubic metres persecond before 1936, it being understood that the schedule contained in the above mentionedarticle will remain unaltered until the discharge report, and are therefore subject to revisionas foreseen therein.

4. It is further understood that the following arrangements will be observed in respectirrigation works on the Nile :-

a) The Inspector-General of the Egyptian Irrigation Service in the Sudan, his staff,or any other officials whom the Minister of Public Works may nominate, shall have the

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full liberty to co-operate with the Resident Engineer of the Sennar Dam in themeasurement of discharges and records to satisfy the Egyptian Government that thedistribution of water and the regulation of the dam are carried out in accordance withthe agreement reached. Detailed working arrangements agreed upon between the Ministerof Public Works and the Irrigation Adviser to the Sudan Government will take effect asfrom the date of the confirmation of this note.

(b) Save with the previous agreement of the Egyptian Government, no irrigationor power works or measures are to be constructed or taken on the River Nile and itsbranches, or on the lakes from which it flows, so far as all these are in the Sudan or incountries under British administration, which would, in such a manner as to entail anyprejudice to the interests of Egypt, either reduce the quantity of water arriving in Egyptor modify the date of its arrival, or lower its level.

c) The Egyptian Government, in carrying out all the necessary measures required,for the complete study and record of the hydrology of the River Nile in the Sudan, willhave all the necessary facilities for so doing.

d) In case the Egyptian Government decide to construct in the Sudan any works onthe river and its branches, or to take any measures with a view to increasing the watersupply for the benefit of Egypt, they will agree beforehand with the local authorities onthe measures to be taken for safeguarding local interests. The construction, maintenanceand administration of the above-mentioned works shall be under the direct control ofthe Egyptian Government.

e) His Britannic Majesty’s Government in the United Kingdom of Great Britainand Northern Ireland shall use their good offices so that the carrying out of surveys,measurements, studies, and works of the nature mentioned in the two precedingparagraphs is facilitated by the Governments of those regions under British influence.

I) It is recognised that in the course of the operations here contemplated uncertaintymay still arise from time to time either as to the correct interpretation of a question ofprinciple or as to technical or administrative details. Every question of this kind will beapproached in a spirit of mutual good faith.In case of any difference of opinion arising as to the interpretation or execution of any of

tile preceding provisions, or as to any contravention thereof, which the two Governmentsfind themselves unable to settle, the matter shall be referred to an independent body with aview to the negotiations on the question of the Sudan.

5. The present agreement can in no way be considered as affecting the control of theriver, which is reserved for free discussion between the two Governments in the negotiationson the question of the Sudan.

I avail, etc.,

M. MAHMOUDPresident Council of Ministers.

Source: League of NationsTreaty Series, Volume 93-94 (1929).

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THE REPORT OF THE JOINT COMMISSION OF HIS MAJESTY’SGOVERNMENT OF THE UNITED KINGDOM AND NORTHERN IRELAND

AND THE EGYPTIAN GOVERNMENT

ENCLOSURE IN No 1.

Nile Commission, 1925.

REPORT.

CONTENTS.

PARAGRAPHSCHAPTER I. – INTRODUCTORY.......................................................................... 1-8CHAPTER II. - DESCRIPTIVE AND GENERAL

Previous History ..................................................................... 9-15The Present Position ............................................................. 16-18Scope of the Present Proposals .............................................. 19-22The Gezira Irrigation Scheme ............................................... 23-26Present Commission - General Considerations ..................... 27-41

CHAPTER III. STATISTICAL .................................................................................42Hydrological Records ................................................................ 43Time Lag ................................................................................ 4-45Losses… .................................................................................... 46Division of the year ................................................................... 47Rising River, July-August ...................................................... 48-52Flood Season .......................................................................... 3-58Falling River, January-February ............................................ 57-79

CHAPTER IV. - PUMP AND BASIN IRRIGATION IN THE SUDAN .................. 80Pump Irrigation .................................................................... 81-86Basin Irrigation.......................................................................... 87

CHAPTER V. - SUMMARY AND CONCLUSION.Summary ................................................................................... 88Conclusion ........................................................................... 89-90

Map of the Nile Valley. 1

1 Not reproduced.

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APPENDICES.

Notes exchanged, January 1925 ..................................................................... Appendix ATime taken for changes of River Level at Sennar to reach Delta Barrage ......... Appendix BTotal discharge, Rosetta and Damietta Branches, July-Aug ............................ Appendix CTime Lags employed in Diagram No. I ......................................................... Appendix CDiagram No. I .............................................................................................. Appendix CFigures reproduced from” Nile Control”, page 87 ......................................... Appendix DCriterion for determining the date at which water may first be abstracted

from the river at Makwar at the beginning of the flood ........................... Appendix EApproximate reduction in Aswan Gauge due to abstraction of 1oom.3/sec.,

150m. 3/sec. and 200m. 3/sec. at Aswan during low floods of 1911,1913, 1915 and 1918.............................................................................. Appendix F

Explanatory Note. Date on which shortage occurred in Lower Egypt ........... Appendix GTable showing date a Delta Barrage on which all water was required

for irrigation or construction of Sadds .................................................... Appendix GDischarges of Rosetta and Damietta Branches, Mean 1919-20 to 1925-1926.

Diagram No.2 ........................................................................................ Appendix GDischarges of Rosetta and Damietta Branches, 1915-1916. Diag No.3 ......... Appendix GDischarges of Rosetta and Damietta Branches, 1913-1914. Diagram No.4 ... Appendix GExplanatory Note on Diagram No.5 ............................................................. Appendix HDr. Hurst’s Diagram. Diagram No.5 ............................................................. Appendix HExplanatory Note on Diagram No.6 ............................................................... Appendix IMr. Butcher’s Diagram. Diagram No.6 ........................................................... Appendix IAswan Natural River, December and January Discharge, 1905-1906—

1924-1925 ............................................................................................... Appendix JAswan Natural River, 1919-1924 ...................................................................Appendix KFalling River. Diagram No.7 ..........................................................................Appendix K

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CHAPTER I

INTRODUCTORY.

1. The appointment of the Commission arose from an exchange of notes dated the26th January 1925 between His Britannic Majesty’s High Commissioner for Egypt and thePresident of the Egyptian Council of Ministers, in which it was agreed that a Commissionshould be appointed “for the purpose of examining and proposing the basis on which irrigationcan be carried out with full consideration of the interests of Egypt and without detriment toher natural and historic rights.”1

2. The following were appointed members of the Commission:Mr. J. J. Canter CREMERS, Chairman.Mr. R. M. MACGREGOR, British Delegate.Abdel Hamid SOLIMAN Pasha, Egyptian Delegate.

The Commission was called upon to report by the 30th June, 1925.The Chairman arrived in Egypt on the 16th February, and the first meeting was held

on the following day.Mr. W. Allard, of the Egyptian Irrigation Department, was appointed Secretary.

3. After preliminary discussions and visits to the Delta Barrage and the offices of thePhysical Department, the Commission was able to lay its plans and to define the generallines of statistical examination. It next visited the sadd near Edfina, which is made annuallyto close the mouth of the Rosetta branch of the Nile; and then proceed on a tour of inspectionup the Nile, including the Sennar Dam and the canalisation works of the Sudan Gezira, thesite of the proposed Gebel Aulia Dam, the Aswan Dam, the Isna Barrage, the site of theproposed Nag-Hamadi Barrage, and the basin systems in the vicinity of Sohag.

4. During the course of its sittings in Cairo and its tours of inspection, the Commissionexamined many of the records of the Physical and Irrigation Departments, and obtained byinterviews the opinions of various officials, both in Egypt and the Sudan, on subjects connectedwith its task. On its return to Cairo at the end of March, the Commission applied itself to anexamination of the statistics as they became available, calling from time to time for suchfurther data as the progress of the enquiry rendered necessary.

5. The Commission agreed at the outset of its deliberations that decisions arrived atduring, the examination of the problem, point by point, should in the first instance beprovisional and subject to review at a later stage when it became possible to envisage theproblem as a whole. By the early part of May most of the ground had been covered, and a

1 See Notes reproduced at Appendix A.

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large measure of agreement had been reached. On certain points, further statistical informationwas still awaited. It was decided at this stage that further progress would be facilitated by thepreparation of a draft report embodying the conclusions so far reached, and it was arrangedthat the two delegates should prepare separate drafts, from which, with the assistance of thechairman, the final draft would be compiled.

6. At this juncture, the chairman’s health began to cause anxiety, and he found itincreasingly difficult to take part in the work of the Commission. On the 21st May hisindisposition took a grave turn, and it was realised that he was seriously ill. For some weeksthere was every hope of his recovery, but most unhappily and to the great grief of his colleagues,he died on the 21st June. The British and Egyptian delegates take this opportunity of placingon record their appreciation of the high professional and personal gifts of their late colleagueand their sense of the loss sustained by the Commission over which he had so ably presided,and by the engineering profession in general, through his untimely death.

7. The chairman’s illness necessitated the temporary adjournment of the Commissionat a time when its task was within measurable distance of completion, and his subsequentdeath obliged the two Governments to consider the most appropriate course to follow inthese unforeseen circumstances. The delegates meanwhile had returned to their normal dutiesin view of the progress that had already been made, and the desirability of completing thework. The two Governments eventually instructed their respective delegates to resume thestudies, so unhappily interrupted and to present their Report.

8. The remaining statistical information having been obtained, the two delegatesreviewed, the alternative drafts already prepared; and finding no reason to depart substantiallyfrom any proposals common to both of them, they proceeded to compile this agreed Report,which they believe would have met with the approval of their late chairman.

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CHAPTER II

DESCRIPTIVE AND GENERAL

Previous History.

9. After the re-establishment of order in the Sudan, as a result of the campaign ofI896-98" a demand arose in the Sudan for the erection of pumps for irrigation on a smallscale; and; with the approval of the Egyptian Government, certain areas of land were givenpumping rights. The area under permit was increased from time to time, as explained indetail in a later paragraph, some pumps being installed to test the possibilities of cottongrowing, and others for the purpose of producing food grains at a time of scarcity during thewar. The area now under irrigation in this way is inconsiderable, amounting to less than40,000 feddans, of which rather more than half is licensed for perennial irrigation, theremainder being restricted to the flood season. An area of some 80,000 feddans in the NorthernSudan has been formed into basins, but, owing to the high Ievels of the land, they are onlypartly filled, even in years of high flood.

10. The greater part of the cultivable land of the Sudan either possesses an adequaterainfall or is inaccessible by canals. The only considerable area suitable for canal irrigation isthe triangular tract between the Blue and White Niles with its apex at Khartoum and extendingas far south as the Sennar-Kosti Railway. From 1905 onwards the possibility of irrigatingsome portion of this area had been under consideration and in 1913 a scheme was preparedfor the irrigation of 100,000 feddans by means of a canal fed from the natural flow of theBlue Nile, the required levels being given by a barrage at Makwar. It was then believed thatsuch a scheme would permit of the cotton crop being matured without detriment to Egyptianinterests. Further experience of agricultural conditions, however, and the occurrence of theexceptionally low river of 1913-14, showed that this was impossible, and that the schemeshould comprise a storage dam, and not merely a diversion barrage. With the addition of areservoir for the storage of water abstracted from the natural flow during the flood season, itwas calculated that the area could be increased to 300,000 feddans without the need fortaking water from the river at low stage, and that such an increase of area was necessary tooff-set the extra cost of the dam. The scheme was recast on these lines, but progress wasinterrupted by the war.

11. Simultaneously, the Egyptian Government had been considering the constructionof a dam on the White Nile at Gebel Aulia, near Khartoum, for the dual purpose of controllinghigh flood, which threatened damage to Egypt, and of storing water for use during the summerseason in Egypt. This scheme was also delayed by the war, though some work was actuallyexecuted during the years 1917-20.

12. The resumption of progress on both of these projects after the war was accompaniedby vigorous public discussion and criticism in Egypt, directed chiefly against the accuracy ofthe data on which they were based. As a result of this the Egyptian Government in January

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1920 appointed a commission of Enquiry, known as the Nile Projects commission, composedof three members nominated by the Government of India, the University of Cambridge andthe Government of the United States. The terms of reference to the commission were asfollows:

The commission is requested to give to the Egyptian Government its opinion ofthe projects prepared by the Ministry of Public Works with a view to the furtherregulation of the Nile supply for the benefit of Egypt and the Sudan. In particular, thecommission is requested:

a) To examine and report upon the physical data on which the projects are basedb) To report upon the propriety of the manner in which, as a result of these

projects, the increased supply of available water provided by them will be allocated ateach stage of development between Egypt and the Sudan.

c) To advise as to the apportionment of the cost of the proposed works and of thisenquiry as between Egypt and the Sudan.The projects were those described in a publication of the Egyptian Government entitled

“ Nile Control “, and comprised the two dams already mentioned, a barrage in Upper Egypt,conservation works in the “Sadd” region and storage reservoirs in the Great Lakes.

13. The report of the Nile Projects commission, which was published in 1921, foundthat the projects were based on reliable data, and advocated their execution. In view, however,of the estimated heavy cost of the Gebel Aulia Dam and its complementary works, the EgyptianGovernment decided in May 1921 to suspend all operations in connexion with this project.The Sudan Government, on the other hand, in view of the favourable report, decided tocontinue work on the Gezira Irrigation Scheme.

14. The majority of the Nile Projects commission felt unable to advise on the problemof allocating those supplies of water, which still remained un-appropriated, and the onlyproposals made in this connexion, namely, those of Mr. Cory, the American member, werenot adopted.

15. In view of the situation, which had led to the appointment of the above-mentionedcommission, the British Government gave, in February 1920, an undertaking that the areaof 300,000 feddans comprised in the Gezira Irrigation Scheme would not be exceeded withoutreference to the Egyptian Government; and the work has been carried out within this limitation.

The Present Position

16. The immediate programme of works outlined in “ Nile Control” consisted of thefollowing items:

(a) The Gebel Aulia Dam to provide additional water for Egypt.(b) The Makwar Dam, or, as it is now called, the Sennar Dam, with a canal

system to irrigate 600,000 feddans in the Sudan Gizira.(c) A barrage at Nag-Hamadi in Upper Egypt.

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For various reasons, first the war, and then financial and other difficulties, no progresshas been made with items (a) and (c). On the other hand, item (b) has been carried tocompletion, and came into operation in July 1925. The cost of this work has greatly exceededthe original estimates, and the Sudan Government, who are responsible for its financialresults, desire to extend the area so as to reduce the risk of financial failure, and generally todevelop still further the resources of the country.

17. It was an important feature of the programme that these three works should becarried out so as to come into operation simultaneously. The actual position, however, withwhich the commission has to deal, is that the Sudan has completed the canalisation of 300,000feddans in the Gezira, and desires to advance a further stage, while Egypt has not yet beenable to carry out her part of the original programme. During the time which has elapsedsince the commission was adjourned, the Egyptian Government have made considerableprogress with their development programme, having now definitely sanctioned theconstruction of the Gebel Aulia Dam and the Nag-Hamadi Barrage, and the undertaking ofan initial stage in the work of conserving the flow of the river in its course through the“Sadd” region.

18. The position as regards the limit of 300,000 feddans was modified by notes whichpassed between the British and Egyptian Governments in 1924 and 1925, of which the lasttwo, giving rise to the appointment of this commission, are contained in Appendix A. Theeffect of these was to terminate the 300,000 feddans limitation of 1920, and to call for somenew arrangement to regulate expansion of irrigation in the Gezira.

Scope of the Present Proposals.

19. The Nile Projects Commission of 1920 had been requested to examine and to giveits opinion on certain projects then under construction or under consideration by the Ministryof Public Works. A less specific charge has been laid upon the present Commission, whichhas been asked only to propose a basis for irrigation in which full consideration should begiven to the rights and interests of Egypt. The commission was thus let free to choose its ownground, to decide how far and in what direction its investigations should be carried, and theform, which its proposals should take.

20. The information brought together and the programme of works outlined in thepublication entitled “Nile Control”, the general conclusions of which were endorsed by theNile Projects Commission, cover the very wide field of possible development of irrigation byworks extending from the Great Lakes in Central Africa to the Mediterranean, and deal withpossibilities belonging to the remote future as well as with works more immediately feasible.The present commission has not attempted so wide a survey and, indeed, the time availableprecluded any such possibility. Nor has the commission felt called upon to attempt a generalanalysis and definition of the principles underlying the allocation of water supplies betweentwo communities. It is content to set out the considerations, which have guided it towards itsown conclusions.

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21. Precedents in this matter of water allocation are rare and practice varied; and thecommission is aware of no generally adopted code or standard practice upon which thesettlement of a question of inter-communal water allocation might be based. Moreover,there are in the present case special factors, historical, political and technical, which mightrender inappropriate too strict an application of principles adopted elsewhere. The commission,having regard to the previous ... history of the question, the present position as regardsdevelopment, and the circumstances attending its own appointment, decided to approach itstask with the object of devising a practical working arrangement which would respect theneeds of established irrigation, while permitting such programme of extension as might befeasible under present conditions and those of the near future, without at the same timecompromising in any way the possibilities of the more distant future.

22. The arrangement contemplated aims at interpreting in definite and technical termsthe, intentions of the note quoted in the opening paragraph of this Report, wherein it wasexplained that in authorising extensions of irrigation in the Sudan “the British Government,however solicitous, for the prosperity of the Sudan, have no intention of trespassing uponthe natural and historic rights, of Egypt in the waters of the Nile, which they recognise todayno less than in the past.” The commission has every hope that its proposals, framed in thisspirit, and after full study of the technical aspects of the problem, may form an acceptablebasis upon which, by harmonious and co-operative effort, the irrigation development of thefuture may be founded, and by which all existing rights may be perpetually safeguarded.

The Gezira Irrigation Scheme

23. As already explained, the chief field for irrigation development in the Sudan is theGezira and therefore the conditions under which the irrigation of this tract is carried outmust have an important bearing on the problem for which the commission has been calledupon to propose a solution. It will be convenient therefore, before proceeding further withthe discussion, to give more detailed account of this scheme.

24. The present scheme provides for the irrigation of an area of 300,000 feddans ofcultivable land, of which one-third will be under cotton from July-August to not later thanthe 15th April, one-third under food crops from August-September to November in the caseof durra and January in the case of lubia, and the remaining third fallow. From the 16th Aprilto the 15th July there will be no crop on the ground, water being required for domesticpurposes only. The really important crop is the cotton, both from the point of view of waterconsumption, and of the economic returns from the undertaking.

25. From the 16th to the 31st July the canal will be gradually raised from domesticsupply level to irrigation supply level, the reservoir level being of necessity raised at the sametime. From the 31st July onwards the canal will be drawing its supply in accordance with theagricultural needs, with a maximum discharge of 84 cubic metres a second. During themonth of November the reservoir will be raised to full storage level, the discharge taken from

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the river for this purpose being about 150 cubic metres a second for thirty days. During thefirst half of January the watering of lubia will cease, only the cotton remaining under irrigation.The calculations in “Nile Control”, upon which the scheme was based, indicated that therequirements of the cotton crop on the above area could be taken from the river withoutdetriment to Egypt, even under the conditions of the abnormally low year 1913-14, up till18th January, after which date the requirements will have to be met from the stored water inthe reservoir. The scheme was accordingly so planned that the reservoir should contain thevolume estimated to be necessary, with due allowance for losses, to meet the cottonrequirements of the defined area from the 19th January to the 15th April, and domesticrequirements from the latter date till the 15th July.

26. Besides the above restrictions as to the season during which the Gezira Schemeshould draw upon the natural flow of the river, and the volume of water to be withdrawnduring that season, there was the undertaking already mentioned in paragraph 15, limitingthe area of cultivation in the Gezira to 300,000 feddans. Thus, even if it were found possibleto use less water than the calculations provided for, the water so economised would not beconsidered as available for an additional area.

Present Commission. General Considerations.

27. From an irrigation point of view, the year in Egypt has always been treated as intotwo seasons of about six months each. During one of these seasons the whole natural flow ofNile, supplemented by the stored water of Aswan Reservoir, is used for irrigation, the mouthsthe river being closed by earth banks as soon as conditions permit; whilst during the otherwater flows to the sea in volumes which for several months are very great.

28. The Sudan Gezira Scheme, which came into operation in July I925, has beenplanned so as to draw water from the natural flow of the rIver only during the latter season,and to draw up the water stored in the Sennar Reservoir during the low-river season. Thecommission regards this as a sound principle; and it is one, which has always been acceptedby the Sudan authorities, who only claim at this season of the year the volumes necessary forthe small area of navigation supplied by pumps under a long-standing arrangement sanctionedby the Egyptian Government. The commission accordingly determined that its first stepshould be the accurate division of year into the two seasons by a detailed examination of theconditions at the two critical points at the beginning and the end of the season of surpluswhere the change of conditions occurs.

29. When this division of the year had been carried out it would be possible to reserveabsolutely to Egypt the natural flow of the river during the low season, subject to the pumpingrights already mentioned. The available supplies during the rest of the year would be examinedwith a view to seeing how much might reasonably be used in the Sudan, taking into accountthe requirement corresponding development in Egypt. It would then remain to examine theminor questions of pump and basin irrigation in the Sudan, and to define the conditions onwhich these should be carried out.

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30. The above are the general lines upon which the commission decided to develop itsproposals. It is now necessary to explain certain principles and methods followed in theactual examination of the problem. The fundamental operation is the division of the year,and in particular the determination of the date at which the Sudan should cease to draw onthe natural river at Sennar. The method adopted in “Nile Control” was to make this datecorrespond with the first withdrawal of stored water at Aswan, and the Sennar Reservoir wasdesigned to supply the requirements of the canal after the I8th January, this date correspondingto the first withdrawal at Aswan in I9I3-14, an abnormally low year. The majority of the NileProjects Commission had approved this method of determining the date, but had advocatedthat the date should be movable, and ordinarily later than the I8th January, in accordancewith the condition of the river in each year, instead of being fixed absolutely with referenceto the abnormal conditions of I9I3-14.

31. The present commission does not regard the time of first withdrawal of storedwater at Aswan as a suitable criterion of the cessation of surplus flow in the river; since itmight well be that the stored water is reserved for some time after there ceases to be anysurplus in the river, in anticipation of more acute needs in the later months. The commissionaccordingly decided to discard this criterion, and to base its proposals on the actual cessationof surplus as indicated by the working of the canals, the regulation at the Delta Barrage, andthe closing of the sadds across the mouths of the river.

32. The commission considered whether its proposals should be based on the abnormalconditions of 1913-14, or upon the mean of a series of years, or should provide something inthe nature of a sliding scale under which the date in question would be advanced or put backin accordance with, the conditions obtaining in each year. The records of Nile floods cover aperiod of over 960 years, and years as low as 1913-14 has occurred only four times. Thecommission felt that while the, occasional occurrence of such years cannot be ignored, itshould not be employed as a basis of any’ scheme. The sliding scale would present complicationsin working, and it was soon clear that the yearly fluctuations were not so important as topreclude the use of a mean date. It was accordingly decided to work on means, and to test theresults so obtained by considering them with reference to specially low years. In particular,the commission recognised that some special provision might be required to deal with a yearlike 1913-14.

33. The commission also had to consider whether its proposals for regulating theexpansion of irrigation in the Sudan should be expressed in terms of areas to be irrigated aswell as of volumes to be utilised during certain specified seasons. In the past, as explained inparagraph 26, a definite area limitation of 300,000 feddans had been fixed for the GeziraScheme, in addition to the restrictions imposed naturally by the storage capacity of thereservoir, and the precise definition of the season during which, and the extent to which,water may be abstracted from the natural flow of the river.

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34. It is in terms of volumes and seasons that the actual statistical examinations of thewhole problem must be conducted, and the record of the working of the reservoir, and of thevolumes drawn off daily by the canal, must be maintained. And it is the volumes and seasonswhich best lend themselves to the imposition of checks necessary to ensure a proper controlover the working of whatever arrangement may be arrived at as the result of the commission’sproposals.

35. An area limitation could not, in itself, constitute complete control over the volumesabstracted from the river, unless supplemented by a reservation as to the crops to be grown,and the system of crop rotation to be followed. It would involve also assumptions as to thevolumes of f water necessary for each different crop, and these assumptions would have toinclude a considerable margin to allow for error. Such a margin, comprising allowances fordoubts as to reservoir capacity, losses, and water requirements of crops, would, by preventingfull use being made of very valuable storage water, react unfavourably on the Sudan’s interests,without corresponding advantage to Egypt. Consequently, an area limitation, unless pitchedtoo high, would have the effect of removing the incentive to economy in the use of water,and it would clearly be to the advantage of neither party that water taken from the rivershould be used uneconomically.

36. In view of the above considerations, the commission decided that its proposalsshould be stated in terms of volumes and seasons only. It was satisfied that the authoritiesconcerned would have no difficulty in devising arrangements for ensuring complete controlover the abstraction of water from the river and from the reservoir. Provided that suchsatisfactory arrangements are made, the commission saw no necessity, from a technical pointof view, of imposing an area limitation over and above the volumetric one. A definition ofseasons and volumes to be extracted would, in accordance with irrigation practice, besatisfactory and adequate in itself; and if it were held necessary, as formerly, to impose an arealimitation as well, it would be for reasons outside the purview of a technical commission.

37. There is another matter, which the commission had to consider in connexion withthe method of handling the problem submitted to it. The greater part of Upper Egypt isunder basin irrigation, largely dependent on natural flood levels in the river, and only partiallyprotected by barrages. Any abstraction of water in flood time in the Sudan must affect theselevels to the detriment of the basin irrigation, and therefore to admit that the lands in questionhave, absolute right to undiminished natural levels must preclude any abstraction of waterby the Sudan.

38. The commission felt that in the circumstances it was impossible either, on the onehand to postpone indefinitely all progress in the Sudan, or, on the other, to damage seriouslyby precipitate action or by excessive abstraction, the basins of Upper Egypt. It was accordingdecided to take the line that consideration, of levels could not be carried to the point ofprecluding development in the Sudan, but only to the point of setting a limit to the extentand rate of this development.

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39. The commission was assisted in coming to this conclusion by the decision of theEgyptian Government, soon after the appointment of the former, to undertake theconstruction of another barrage in Upper Egypt. It has also now been decided to construct,for the benefit of Egypt, the Gebel Aulia Dam in the Sudan. With the undertaking of thesetwo works the question of levels in Upper Egypt loses much of the importance, which mightbe attached to it if development by the Sudan only were in prospect.

40. A further question of a general nature, calling for decision as a preliminary todetailed examination of the problem, was whether the Gezira Canal and the Gebel AuliaDam should be treated as being on the same footing, though the latter work had not yetmade any effective progress. It was considered that, as both works had originally formedintegral parts of the same programme, no special priority should be accorded to the completedGezira Scheme in respect of the allocation for any further supplies found to be available butthat both should be treated as having equal priority to any extensions. As a corollary to thisview, it follows, and it was so assumed by the commission, that the Sudan should afford everyfacility for the construction of the Gebel Aulia Dam.

41. Finally, the commission considered whether it must regard the completed GeziraScheme as having an irrevocable right to take water to the extent and under the conditionsprovided for in the “Nile Control”. There was the possibility that the commission’s examinationof the statistics, including those of the years, which had elapsed since the scheme was initiated,might lead to conclusions other than those of “Nile Control”. At the same time, the schemehad been undertaken and practically completed after full examination of the question, notonly by the Egyptian authorities but also by the Nile Projects Commission; and the SudanGovernment had entered into certain commitments on the basis of the original waterallotment. The commission felt that in these circumstances, any reduction in the volumesavailable for this scheme would raise issues with which, as a technical body, it would not beconcerned. The detailed investigation of the basis of the original scheme by methods adoptedby the Commission has, however, shown, as will be seen later, that no serious divergenceexists between the results of the present investigations and those previously arrived at.

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CHAPTER III.

STATISTICAL

42. As a preliminary to the detailed examination of the statistics, it will be convenientto describe briefly the nature of the records available, and to explain certain factors affectingthe calculation.

Hydrological Records

43. The annual maximum and minimum levels at Cairo are on record from 641 to1451 AD and again from 1737, with one break, to the present day. These records cover aperiod exceeding 960 years, and are of value in determining the periodicity of abnormallylow years. Daily gauge readings at Aswan and Cairo were begun in 1870, with occasionaldischarge observations. Since 1903 upstream and downstream levels and the position of thesluices at Aswan have been recorded daily, and by means of the calibration of these sluices,which has now been determined with a high degree of accuracy, the discharges in the earlieryears have been calculated. Distribution at the Delta Barrage has been carried out since 1919by the calibration method. In general the accuracy and system of record of the statistics arebeing continually improved, and they are now of a high order; and great reliance can, inparticular, be placed on those of the last seven years.

Time Lag

44. The great distances and the small slope of the river make the time of travel animportant factor in any calculations regarding the Nile. This time of travel has to be borne inmind continually, and where reference is made to the date of some event at Sennar, forexample, it is necessary to reckon the corresponding date on which the effect will be felt atAswan, or the Delta Barrage, before the significance of that effect can be properly appreciated.Reference, in short, must be both by time and place. The lag, moreover, is not constant, butvaries with the river stage.

45. At the request of the commission the time lag between one point and another hasbeen’ calculated by the Physical Department. The calculations are contained in Appendix B,from which it will be seen that the total time of travel from Sennar to the Delta Barrage at thecritical times is estimated to be :

In January-February = 34 daysIn July-August = 27 days.

Where necessary for the purpose of investigating special conditions, i.e., low years, thelag taken into account has been specially calculated from the appropriate data.

Losses

46. “Nile Control” (page 248) estimated that 124 volumes of water passing Khartoum arereduced by losses to 100 at Aswan. In gauging the effect on the river conditions in Egypt of

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any abstraction at Sennar the commission does not feel that it is necessary or even possible totake, these losses into account for the purposes of the present proposals. It prefers to assumethat the full effect of any abstraction at Sennar will be felt in Egypt without any reduction. Atsome future time this factor may become more precisely known, and also more important,and it can then be taken into account if necessary.

Division of the Year

47. As already explained, the basic idea underlying the commission’s proposals is thedivision of the year into two seasons, during one of which the Gezira Canal would take waterfrom the natural river, whilst during the other its supply would be drawn from storage,leaving the natural river reserved to Egypt. In this respect the commission is merely followingthe principles of “ Nile Control”, and of the Nile Projects Commission, but adopting othermethods of studying the problem and of demonstrating the results. The examination of theconditions at the critical points where the supply of the rising river overtakes requirementsand where, on the falling river, the reverse takes place, formed the most important part of thecommission’s studies. The present Chapter is chiefly devoted to this examination, thepresentation of its results, and the conclusions arrived at.

Rising River, July-August

48. The conditions of the rising flood at the Delta Barrage are illustrated in DiagramNo. I contained in Appendix C, which is based on the discharge passing down the riverbelow the Delta Barrage. The river curves are those of the mean of 1912-25, the abnormallylow year 1913, and of the year 1915, in which the conditions were, except for 1913, theworst of the series of fourteen years. The discharge used for irrigation below the barrage atthis time of the year is taken into account and the effect of the Sennar Dam, operated asprovided in the table 1 on page 87 of “Nile Control”, is shown with due allowance for thetime lag, which, as already explained, varies with the stage of the flood.

49. It is seen from the diagram that in average years by the time the effect of withdrawalsof water at the Sennar Dam is felt at the Delta Barrage, the supply passing down the riverbranches amounts to nearly 150 million cubic metres daily, and that the effect is negligibleunder those conditions. In 1915 the effect would have been appreciable but not injurious.Under 1913 conditions, the effect would have been to take water from the river about tendays in advance of the establishment of the real rise of the flood. The conclusion to be drawnfrom this diagram is that, provided the rise of the river is not later than in 1915, thearrangement in “ Nile Control” is quite suitable whereby the Gezira Canal would begin onthe 16th Ju1y to draw on the river at Sennar to the extent of the prescribed volumes. In yearsworse than 1915 some postponement of this date would be needed to avoid taking wateractually required for irrigation in Egypt.

1 Reproduced as Appendix D.

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50. It was explained in paragraph 41 that the commission would feel that, on generalgrounds, any proposal for reducing volumes already allotted to this scheme, and in respect ofwhich commitments had already been entered into, would be outside its province. Thequestion of postponing the opening of the canal for a few days in occasional years of a laterise of the river appears, however, to the commission in a somewhat different light. At thistime of the year the water is chief required in Egypt for the durra crop, which should be sownas early as possible if the results are to be obtained. Similarly, in the Sudan Gezira, earlysowing of the cotton is desired. It seems reasonable that in a year when the rise of the river isdelayed, the Sudan should share with Egypt whatever disadvantages may attach to the latesowing of the crops.

51. The conditions of 1915 may be regarded as the worst conditions under which the“Nile Control” arrangement would be suitable; and those of 1913 as the worst likely tooccur. A sliding-seal whereby the opening date would be postponed in proportion as theconditions fell short of those of 1915 would meet the requirements, which the commissionhas in view. Such a sliding-scale might be derived from the figures contained in Appendix E.It is seen that both in 1915 and in 1913, on the date when the Sudan could have begun todraw on the river, the combined discharge of, the Blue and White Niles amounted to 142million cubic metres a day; and that the mean discharge for the preceding five days was 135millions a day. Adopting a figure of 160 millions to allocated margin, it could be arrangedthat the Gezira Canal should not draw on the natural river until a mean total discharge of160 millions a day for five days is reached at Sennar and Malakal, allowing for ten days’ lag inthe case of the latter.

52. The commission, whilst putting forward this proposal from considerations of equity,does not believe that in fact any appreciable harm wou1d be done to Egyptian interests if theSennar works were operated according to the” Nile Control” scheme, regardless of the characterof the season. Moreover, as stated in an earlier paragraph, it is not in favour of introducingcomplications such as might be involved in the use of a sliding-scale. But in this case thecriterion as to the character of the season is so direct, and the procedure so simple, that nodifficulties should arise on the rare occasions when the sliding scale would be called into play.The commission accordingly recommends the adoption of this arrangement if the authoritiesconcerned think it worth while departing from the simplicity of a fixed date.

Flood Season

53. The rise of the river having, as already seen, become well established in the latterhalf of July, it has now to be seen what volumes, if any, could, consistently with the interestsof Egypt and the principles followed by the commission, be taken in the Sudan, in additionto the volume allowed for the present Gezira Scheme, as detailed in “Nile Control”. DiagramsNos. 2 to 4 show the volumes escaped into the sea under average conditions and in the twolowest years, 1915 and 1913, and the effect which will be produced by the Gezira Canal andthe filling of the Sennar and Gabel Aulia Reservoirs. With regard to the latter reservoir, thecommission understands that the details of a revised scheme have now been approved by the

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Ministry of Public Works, but commission is not aware of the exact particulars. The filling asshown on the diagram is an assumption made by the commission with the object, chiefly, ofshowing the proportion, which the capacity of this reservoir bears to the volumes available atthis season. The water of the White Nile being free of silt, the filling of this reservoir, unlikethat of Aswan or Sennar, can be carried out at any time.

54. Although there is seen to be a large volume of unused water at this season, thecommission felt that any additional water allotted to the Sudan should, for two reasons, beon a moderate scale. In the first place, the losses in the new reservoirs at Sennar and GebelAulia are at present a doubtful factor, and will only become known accurately when theworks have been in opera1 for a year of two. In the second place, there is the question oflevels as affecting the basins in VI Egypt, to which the Commission has given carefulconsideration. Appendix F has been prepared to show the effect at Aswan of the withdrawalof volumes of 100, 150 and 200 cubic metres a second during the low floods of 1911, 1913,1915 and 1918. No calculations have been made as to effect of the filling of the Gebel AuliaReservoir in its revised form, but it is clear that this reservoir must have a much greaterinfluence on the levels in Egypt than the abstractions at Sennar contemplated.

55. An important consideration bearing on this question is that, judging by the resultsof the pumping schemes, the irrigation requirements of the Gezira Canal will not be at theirmaximum in August and September, the season when the flood is at its maximum. Thecotton crop is sown in the Sudan in the latter part of July and the early part of August, and,owing to rainfall at this season, the second watering is not required till the latter part ofSeptember, the food crop meanwhile being sown after the cotton. Consequently, whatevermaximum discharge may be fixed for the Gezira Canal in flood time, it will, in fact, betaking a reduced discharge at the time of the basin filling in Egypt.

56. It has always been recognised that a lowering of levels in Upper Egypt, withconsequent increased difficulty of filling the basins, must result from the working of theGebel Aulia and Gezira schemes. The basins in the Sudan will be similarly affected. Thepresent commission is not disposed to enter into an argument on general principles as tohow far the maintenance of levels can be regarded as an established right.

Approaching the matter as a body of engineers invited to advise on a practical question,the commission considers that development or conservation works in the upper part of theriver should not be indefinitely restricted by considerations of the natural levels lower down,but that the Sudan should accept a limited rate of progress, so as to afford Egypt the opportunityto overtake the effect of development in the Sudan by construction of the works, whichformed her part of the original.

57. Subject to the above proviso, the commission finds that from the first August, theadditional volumes shown in the following table could be taken as Sennar in flood time. Thefirst August at Sennar corresponds to about the 25th August at the Delta Barrage, a date bywhich the flood is well established in its rise, and the Delta Canals have attained their full

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supply levels. It further recommends that the additional volume should be taken progressivelyon a scale not exceeding that in the following table:

Maximum Discharges in Cubic Metres per secondYear Already sanctioned

For initial scheme Proposed Addition Total1925-26 84 - 841926-27 84 - 841927-28 84 - 841928-29 84 - 841929-30 84 12 961930-31 84 24 1081931-32 84 36 1201932-33 84 48 1321933-34 84 60 1441934-35 84 72 1561935-36 84 84 168

NOTE: The maximum discharge is 84 cubic metres a second in August, September, October and November;and 80 cubic metres a second in December.

58. The commission finds that in a year like 1913 the final filling of the Sennar Reservoirmight have to be modified from the” Nile Control” programme if the additional dischargenow proposed is taken by the canal. In all such years the programme of filling Aswan iscarefully considered and adopted to the conditions prevailing. The commission foresees nodifficulty in application of the same methods to the relatively small volume required for theSennar Reservoir, and does not think it necessary to make any specific proposals in a matterwhich is best left for the authorities concerned to deal with if and when the need arises.

Falling River. January-February

59. The commission devoted much time to considering whether the 18th Januarycould be taken as correctly marking the cessation of surplus in the river. Appendix G, with itsaccompanying statement of dates, gives an attempt to arrive at the correct date, employing ascriteria the demands of the canals, the gradual shrinkage of the volumes passing the DeltaBarrage and the closing of the sadds, or earth banks, at the river mouths.

60. The earlier years may be discarded as unreliable or inapplicable to present conditions.The year 1917-18 was entirely abnormal, as the river remained in flood all through thesummer. Taking the remaining years in two groups, there ceased to be any excess water onthe following mean dates:

Delta Barrage Corresponding Date at Sennar1910-17 February 21 January 181919-25 February 11 January 8

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Thus the earlier group of years representing the conditions obtaining when the GeziraScheme II was being planned gives, by the method now employed, the same date at Sennaras was actually adopted by the framers of the scheme, namely, the 18th January. On the otherhand, according to the data of the more recent years, the date would be the 8th January.

61. By way of further study of this question, the commission invited Dr. Hurst, DirectorGeneral of the Physical Department, and Mr. Butcher, Director of the Delta Barrage, toinvestigate separately, and by whatever method seemed to them most appropriate, theconditions at this season of the year. They were asked firstly to test the correctness of the”Nile Control” date of the 18th January, and, secondly, assuming that the Gebel Aulia Damhad come into operation, to ascertain up to what date the surplus still remaining wouldpermit of the Gezira Scheme being allowed the additional volume found by the commissionto be available during the flood season. The object in making the assumption that the GebelAulia Dam was actually in operation was to give effect to the view expressed in paragraph 40,i.e., to ensure that there should be sufficient water for the Gebel Aulia Dam and the resultingdevelopment of irrigation in Egypt before any further allotment of water were made for theGezira.

62. Dr. Hurst based his study on the figures of 1920, which, for the month of February,was the lowest of the six years 1919-20 to 1924-25. The method adopted and the resultsarrived at are set out in Appendix H and its accompanying Diagram No.5. The conclusionarrived at is that under existing conditions, i.e., ignoring the Gebel Aulia Reservoir, theGezira Canal could be given the “Nile Control” volumes up to the 23rd February, DeltaBarrage date, corresponding to the 20th January at Sennar. Taking Gebel Aulia into accountwithout the losses in the reservoir, the date would be the 12th January at Sennar, while,allowing for these losses, the date would be the 8th January. As regards the additional waterfor the Gezira, it was found that, ignoring the losses, the proposed additional supply couldbe taken up to the 1st January at Sennar, and, with losses taken into account, up to the 28thDecember.

63. Mr. Butcher employed a different method, explained in the note in Appendix J,based on the average of the six years 1918-19 to 1923-24, for which period the records, asalready mentioned, are exceptionally detailed and reliable. It is important to know how thesesix years compare with the mean of a longer cycle; and Appendix J shows that the meansupply in December and January of these years represents 91 per cent of the correspondingmean of the last 20 years, and that all six years are below the average of the twenty years. Thecommission regards these years as affording a suitable basis of calculation.

64. Nothing was known to the commission of the manner in which the additionalstorage water of the Gebel Aulia Reservoir would eventually be employed. Mr. Butcher,finding that the storage amounted to an addition of about 22 per cent to Egypt’s suppliesduring the summer season, assumed that a corresponding expansion would take place in thedemands for water at other seasons of the year. It is doubtful if such a result would actually

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occur, but the effect of this assumption on the calculations is certainly favourable to Egypt.Assuming the Sennar and Gebel Aulia Reservoirs to be both in operation, there would,according to the Diagram No.6 employed in this calculation, be sufficient water to meet allrequirements in full up to the 10th February corresponding to the 7th January at Sennar, afterwhich there would still remain available a volume of 140 millions now running into the sea.”

65. The diagram shows the effect of the further abstraction of 80 cubic metres a secondafter providing for the Gezira Canal on the” Nile Control” basis, and the expansion ofcultivation in Egypt following the construction of the Gebel Aulia Reservoir. It will be seenthat the addition volume can be abstracted up to the 5th February at the Delta Barrage,corresponding to the 2nd January at Sennar, without taking water now in use of for existingcultivation, and leaving discharge of 75 million cubic metres a day for navigation requirementsduring the annual closure of the canals in Egypt.

66. As another means of exhibiting graphically the conditions at this season of theyear, and their relation in time to conditions at Sennar, Diagram No.7 was prepared. Thisshows the daily discharges of the two branches in January and February in the four lowestyears, 1913, 1916, 1920 and 1922. The volumes being stored at Aswan at the same time arealso plotted on the diagram, which therefore gives a fairly complete representation of conditionsat this season. The Sennar dates, the 31st December and the 18th January, are also shown onthe diagram, the appropriate lag being employed.

67. It will be seen that the calculations referred to in paragraph 60, so far as the earlieryears are concerned, and Dr. Hurst’s first calculation, both tend to confirm the arrangementby which the Gezira Canal was planned to draw on the river up till the 8th January. Thesecalculations ignore the effect of the Gebel Aulia Reservoir, whilst the view expressed inparagraph 40, that no special priority should be given to the Gezira Scheme, would requirethat account be taken of both schemes. Taking both into account, the date given by Dr.Hurst’s calculations is the 8th January. Although the commission takes the view stated as topriority, it is not prepared to argue that such a view should be applied retrospectively, andthat the basis of a completed scheme should necessarily be changed as the result of the adoptionof a new principle, new data and new methods of calculation.

68. Turning now to Mr. Butcher’s calculations, attention must be drawn to theimportance of the factor introduced by the closing of the sadds on the river branches at thistime of the year. This operation requires the use of considerable volumes of water in order tomaintain a sufficient flow through the gap in the uncompleted sadd to prevent the entry ofseawater into the river. The closing is carried out under present conditions in February inmost years but with the coming into operation of the Gezira Scheme and Gebel Aulia Reservoir,the resulting increased draw on the river will be such that, unless the sadds are closed earlierthan at present, the water necessary to exclude the salt must be taken from storage.

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69. With an earlier closing of the mouths of the river the water used under presentconditions for excluding sea water will become part of the irrigation supply at this season. Itis, in fact, included in the volume of 140 millions referred to in paragraph 64 as availableafter the date when a shortage would first be felt, namely, the 7th January, at Sennar. Now,according to the scale provided in “Nile Control” the Gezira Scheme would draw from theriver a volume of 69 millions, or almost exactly one-half of the available 140 millions. Thus,with the change in the time of closing the sadds, which, according to Mr. Butcher’s forecast,must take place with expansion of irrigation, the first instalment of the Gezira Scheme,though drawing its supply from the river till the 18th January would not be taking water atpresent used for irrigation in Egypt. In this calculation the commission sees confirmation forthe view that, as far as the present Gezira Scheme is concerned, no change need be proposedin the original date the 18th January.

70. As regards the date up to which the additional supply could be taken, the results ofthe two investigations agree fairly well, being in the one case the 28th December and in theother 2nd January (Sennar dates). The commission recommends that the additional water betaken till the 31st December. It is important to explain at this point that for purposes of siltclearance and other works, the canals in Egypt are closed every year towards the end ofDecember and reopened in the early part of February, the actual dates of reopening of thedifferent canal systems depending on the completion of the closure works. This closure is anannual necessity and it must always take place at this season, as climatic conditions render itimpossible at any other. It, therefore, forms an important feature of the irrigation year inEgypt. It is the reopening of the canals after this closure, which accounts for the rapiddisappearance of surplus water in Egypt in February and the fact the shortage occurs at afairly constant date every year. The effect of the commission’s recommendation in thisparagraph is therefore that the Gezira Canal should not take any additional water from theriver after the time corresponding to the reopening of the canals in Egypt.

71. The arrangement by which the Gezira Canal would draw the volumes provided in“Nile Control” from the natural river to the I8th January, but would take no extra water afterthe 31st December, may perhaps be made clearer if the extent to which the Sudan may drawupon the river in January is expressed in terms of total volumes without the use of the datethe 18th January. The volume provided in “Nile Control” is 117 million cubic metres up tothe 18th January, and the commission’s proposal is that no more than this should be taken inJanuary. As explained in paragraph 49, the Sudan will not again draw on the natural river tillthe 16th July. Thus from the 1st January to the 15th July the Sudan will only take from thenatural river, exclusive of the comparatively small volumes for pumps, a volume of 117million cubic metres. At this period of the year Egypt will have practically all the remainderof the natural flow amounting, from the figures in Appendix K, to about 13,000 millioncubic metres, as well as the volumes stored at Aswan and Gebel Aulia. Viewed in this light,the question of the precise date in January up to which the Sudan should draw the” NileControl” volumes of 4.5 million cubic metres a day from the river is seen to be a matter ofrelatively minor importance from the point of view of the water supply of Egypt. On the

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other hand, it would be of real importance to the Sudan, whose resources during the low-river season would amount to no more than the contents of the Sennar Reservoir, i.e.,something of the order of 500 million cubic metres, with rights in the natural river limited tothe above volume of 117 millions and the small volume for the pumps.

72. The commission carefully considered whether it should propose any specialprovisions for dealing with abnormally low years, such as 1913-14. It was aware that in sucha year, with the Gezira Scheme drawing on the natural river up to the 18th January, Sudanwould on the method of calculation employed in this Report, be drawing to some extent onwater not actually surplus to Egyptian requirements. In order to deal specially with suchyears it would be necessary to adopt some criterion or index by which abnormal conditionswould be defined, a sliding-scale to regulate the amount of water to be taken by the Sudan inthese years, and a method of forecasting these conditions some time in advance of theiractual occurrence.

73. Various arrangements were thought of and discussed with the Physical Department.Finally, the commission decided that, in view of the relative insignificance of the volumesinvolved, the rarity of abnormally low years, and the fact that the Egyptian Government hasnow definitely embarked on a policy of developing the latent resources of the river, it wouldbe of doubtful utility to propose special arrangements which would involve elaborateforecasting, would open the door to misunderstanding and friction, and which might neverbe needed. On the facts themselves and on the general grounds set out in paragraph 41, thecommission would not propose any change in the original plan by which the volumes originallyprovided for the Gezira Canal in “Nile Control” may be taken from the natural river up tothe 18th January.

74. As regards the additional water, however, the considerations in paragraph 41 donot apply and the commission felt that its proposals must take into account the occurrenceof low years, even if this involved the inconvenience of a sliding scale. Owing to the winterclosure of canals In Egypt, there is an important difference between the use of water atSennar in the first eighteen days of January and its use in December. For whereas water takenin January might affect irrigation supply in Egypt, that taken in December would only befelt in Egypt during the time of closure of the canals, during which period the river is in flowto the sea, and navigation is the only interest involved. Thus, in considering a sliding scale forregulating the date at which the additional water should cease to be drawn from the river, thetest to be applied is the effect of the proposed abstraction of water upon navigation facilitiesin Egypt.

75. There is no absolute figure of discharge, which can be adopted as the minimumrequired for navigation at any time. In “Nile Control” a figure of 1,500 to 2,000 millionsdownstream Aswan is mentioned as being required in January for navigation; and, in theminority recommendation of the Nile Projects Commission, the figure of 1,500 millionswas proposed. As mentioned in paragraph 65, the arrangement proposed in this Report

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would provide a discharge of 75 millions a day, or 2,300 during the month, under conditionssomewhat below average. It would not be possible to fix such a discharge as an absoluteminimum even for the worst years, since in January 1914 the discharge is seen (DiagramNo.7) to have fallen to 40 millions a day, and even less; at the Delta Barrage.

76. An arrangement arrived at by another line of argument was considered by thecommission. The natural river is seen from Diagram No.6 to be falling at a mean daily rate ofabout 1 million cubic metres a day at the end of January at the Barrage, corresponding to theend of December at Sennar. The total volume now proposed to be abstracted at Sennar inDecember is approximately 14 millions a day. Thus, whatever conditions would have occurredin Egypt in previous years would, under the new conditions, occur about fourteen daysearlier. A possible arrangement would be to have a sliding-scale by which, according to thecharacter of the season, the date for ceasing to take the extra water would be advanced until,under 1913-14 conditions, it would be the 18th December instead of the 31st December asin ordinary years.

77. As an index of the character of the year, the total natural river as at Aswan in themonth of December may be employed. To determine the conditions to which the 31st

December would be applicable, there is the calculation referred to in paragraph 62, indicatingthat in 1919-20, the date should have been the 28th December, and the calculation referredto in paragraph 65, indicating the 2nd January. Now, in 1919-20, the total December flow isseen (Appendix J) to have amounted to 4,410 millions, whilst in the six years employed forthe second calculation it averaged 4,860 millions. From this it appears that a total of about4,700 millions would be a suitable zero basis for the sliding scale. At the other end of thescale is the 1913-14 figure of 2,800 millions. On this basis the sliding-scale would take thefollowing simple form: The date up to which the Sudan will take the additional volume of 80cubic metres a second will be the 31st December in all years in which the total natural riverat Aswan in December is not less than 4,700 million cubic metres; and it will be earlier inlow years at the rate of three days for every 400 millions by which the actual total Decembernatural river in any year falls short of 4,700 millions.

78. This scale may have the appearance of being somewhat of an approximation, butit is devised from the data available upon the only basis, which is applicable at this season ofthe year, namely, navigation needs, which do not lend themselves to accurate definition. It isin according with recorded facts, and it serves the purpose, which the commission has inmind, adjusting Sudan’s supply in accordance with the vicissitudes of the season, from whichneither party can reasonably enjoy immunity. In practice the Sudan would be obliged to goon drawing from the river until the end of December, and to make good the overdraft lateron when the criterion of the year had been determined.

79. There are two outstanding objections to a sliding scale on the lines proposed. Inthe first place, any such arrangement opens the door to possible differences of opinion as tothe figures upon which it depends; and it may well be that a fixed date, with its immunity

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from the possibility of dispute, is preferable to an arrangement theoretically desirable, butliable in practice to lead to friction between the authorities who will have to work it. In thesecond place, and accentuating the above objection, the suggested scale depends upon thenatural river at Aswan, and, with more reservoirs in operation above this point, thecomputation of the natural river at Aswan II become a difficult matter, involving a numberof doubtful factors. It is, however, the best that commission can devise which will serve thepurpose in view, namely, to ensure that the working of the Gezira Canal is, so far as extensionsare concerned, adjusted to suit the conditions of low years.

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CHAPTER IV.

PUMP AND BASIN IRRIGATION IN THE SUDAN

80. As pointed out in an earlier paragraph, the areas in the Sudan under pump andbasin irrigation are on a small scale, and therefore relatively unimportant as factors in thesituation. Nevertheless, important considerations are involved, and the Commission hasdevoted considerable thought in particular to the question of pump irrigation.

Pump Irrigation

81. Prior to 1904 pumps had been licensed in the Sudan, with the approval of theEgyptian authorities, to the extent of about 2,000 feddans of perennial irrigation. On thecompletion of the, Aswan dam in that year an increase of 10,000 feddans was approved, towhich was added, on raising of the dam in 1912, a further 10,000 feddans. The approvedarea of perennial pump irrigation is therefore about 22,000 feddans. There is some doubt asto the total area authorised to receive perennial pumping, some of the records tending toshow that the 10,000 feddans approved on the completion of the Aswan Dam included thearea previously licensed, whilst others tend to show that the 10,000 feddans was for newlicences. The difference is not of great importance, but the commission is of the opinion thatthe matter should be cleared up by the authorities concerned so as to avoid futuremisunderstanding.

82. The British delegate suggested that the two Governments concerned might beprepared to agree that, following the above analogy, the area of perennial Pumping in theSudan should be increased by 20,000 feddans on the completion of the Gebel Aulia dam.This is not, however, a technical point, and it goes somewhat beyond the scope of this Report,as defined in earlier paragraphs; for it raises the question, whether the Sudan should be heldentitled, by virtue merely of its geographical position, to draw on the river at a time whenthere is no surplus.

83. It should be noted that perennial pumping must involve taking water during thelow stage of the river, and although in practice the actual area under irrigation in the summerhas so far always been much less than the sanctioned area, the above suggestion would permitthe Sudan to draw on water, which is at present beneficially used by Egypt. However, in viewof the relative unimportance of the volumes that would actually be drawn from the riverduring its low stage by a limited expansion of perennial pumping, the commission feels thatthe Governments should have no difficulty in settling this question without the interventionof a technical body, and it accordingly refrains from making a definite recommendation.

84. In addition to the above perennial irrigation, the Sudan was authorised in 1905,under an order of the Egyptian Ministry of Public Works, to pump without restriction ofarea from the 15th July to the end of February (Sudan dates). This authority has, so far, beenutilised to the extent of about 16,000 feddans. The investigations of present conditions, as

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set out in this Report, “indicate that the flood season, to which this permit was intended toapply, cannot be said to extend beyond the end of December (Sennar); and, therefore, inaccordance with the principles adopted by the commission, flood pumping, should, in thecase of any new areas, cease at this date. Agricultural conditions, however, are such thatpumping under these conditions would have little value. Consequently, it becomes necessaryto consider how non-perennial pumping in the Sudan can be regulated in the futureconsistently with the principles of this Report, and under present conditions of supply in theriver.

85. A solution, which suggests itself is that, the water consumed after the end ofDecember, on any new areas of non-perennial pumping should be compensated for by therelease of storage water from the Sennar Reservoir. A change in the method of working thereservoir would make available an additional volume, not taken into account in the calculationsfor the Gezira Irrigation Scheme, which could be utilised for this purpose. The original planfor working the Gezira Canal, as explained in an earlier part of this report, was that from the15th April till the 15th July the canal should remain in flow with a discharge drawn from thereservoir estimated as being necessary for domestic purposes throughout the irrigated tract.Under this arrangement the reservoir would naturally have to be kept up to the level requiredto give this supply. Owing to the relative levels of the canal and the natural river, a volumeestimated at about 150 million cubic metres would, under these conditions, remainpermanently impounded in the reservoir. If the domestic water, supply were raised by pumps,it would be possible to release this volume, and thus return to the river any volumes requiredto compensate for the water abstracted by pumps after the close of the flood season, i.e. endof December (Sennar).

86. This volume must be again taken from the river in July before the canal can bebrought into operation for the following season; and Diagram No.1 shows that, in a year ofaverage or high flood, no serious effect would be produced on conditions in Egypt at thecorresponding dates. In a year of very late flood the programme of filling of Sennar Dam canbe retarded, in accordance with the arrangement proposed in paragraph 51, so as to reduceto a negligible quantity the effect of the above extraction. This should not present any difficultyto the authorities concerned, and the commission feels that the occasional occurrence of,very exceptional conditions should not be regarded as precluding the adoption of measuressuitable under ordinary conditions, and not impracticable even under bad conditions. Thecommission is of the opinion, therefore, that permits for flood pump working to the end ofFebruary can, therefore, continue to expand gradually as in the past, so long as any waterpumped after the end of December can be compensated for in the manner explained above.

Basin Irrigation in the Sudan

87. There are areas of basin land in the Sudan totalling about 80,000 feddans, ofwhich, however, only a small part is annually flooded. These basins are, it is understood, notcapable of much improvement, and are of no great agricultural value. The land is high andthe conditions seem to be such that they cannot be filled from canals taking off at a distance

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upstream, as is the case in Egypt. They will suffer to some extent from the abstraction ofwater at Sennar and Gebel Aulia, but the arguments employed in connexion with the basinsof Upper Egypt apply here also. The commission does not regard this question of basinirrigation in the Sudan as an important factor in the problem before it, and sees no need tomake any special recommendations in this, connection.

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CHAPTER V

SUMMARY AND CONCLUSION

Summary

88. The commission’s main findings may be summarised as follows:(a) The natural flow of the river should be reserved for the benefit of Egypt from

the 9th January, to the 5th July (at Senn) subject to the pumping in the Sudan as definedbelow.

(b) The Gezira Canal may begin to draw on the natural flow of the river on the16th July, the canal being gradually raised to full supply level by the 31st July, accordingto the scale fixed in “Nile Control”, contained in Appendix D, provided that a meantotal discharge of 160 million cubic metres a day must have been reached at Sennarand Malakal during the preceding five days, allowing for ten days lag in the case of thelatter.

(c) From the 1st August to the 31st December the Gezira Canal may, subject to theprogressive scale laid down in paragraph 57 of “this Report, draw the following volume,effective from the river:

The 1st August to 30th November, 168 cubic metres a second.The 1st to 31st December, 160 cubic metres a second, provided that, in any year

in which the total flow of the natural river in December as at Aswan is less than 4,700million cubic metres, 80 cubic metres a second shall be taken from the nature riverduring the whole of December, and the balance shall be taken from the natural riverup to a date preceding the end of the month by three days for every 400 million cubicmetres by which the actual total December natural river in that year falls short of4,700 million cubic metres.

(d) The Gezira Canalmay not draw during the month of January more than the volumes provided in

“Nile Control”, i.e., 80 cubic metres a second from the 1st to 15th, and 52 cubic metresa second from the 16th to 18th, a total of 117 million cubic metres.

(e) The final filling of the Sennar Reservoir from the level required to give fullsupply in the canal to the full storage level of the reservoir should be carried out inNovember, as provided in “ Nile Control”.

(f ) Any further flood pumping carried out in the ‘Sudan up to the end of Februaryshould be considered as drawing its supply from the Sennar Reservoir after the 31St

December. In other words, a volume equal to that consumed on these areas after the31st December, according to ascertained data, should be discharged from the reserve ascompensation to Egypt, and the Sennar Reservoir should be worked so as to provideadditional storage required to cover the compensation volumes as above.

(g) After the end of February only perennial pumping, as referred to in paragraph8 should be carried out in the Sudan.

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Conclusion

89. The commission foresees that it will be necessary from time to time to review thequestions discussed in this Report. It regards it as essential that all established irrigationshould be respected in any future review of the question. In particular, the Sudan shouldonly take from the natural river in January, exclusive of pumping rights as now existing, the”Nile Control” volume of 117 million cubic metres. All other requirements till July should beprovided by the Sudan from storage or other conservation works.

90. The commission has been impressed by the fact that future development in Egyptmay require the construction of works in the Sudan and neighbouring territories, such asUganda, Kenya and Tanganyika, and it feels that Egypt should be able to count on receivingall assistance from, the administrative authorities in the Sudan in respect of schemes undertakenin the Sudan, as well as from the British Government in any questions concerning theneighbouring territories.

91. The commission has endeavoured to find a practical and workable basis for irrigationand to foresee, and, as far as possible, to provide for any difficulty that may arise in thefuture. But it is aware that doubtful points may well arise in the interpretation of any document,and that differences of opinion as to fact cannot fail to occur from time to time in suchmatters as the volumes of water flowing in a river or canal, discharged through sluices, or lostby evaporation or seepage. It does not feel called upon to make proposals with regard tospecial arrangements for dealing with such doubts and differences, which seem to be outsidethe sphere of a technical commission. It does, however, desire to record emphatically theview that neither the elaborate drafting of an agreement nor the provision of special machineryfor adjudication should be allowed to obscure the importance of mutual confidence and co-operation in all matters concerning the river and its waters.

92. Finally, the commission desires to draw attention to the very great importance ofcontinued study of the river and systematic record of the statistics. A very good hydrologicalorganisation has ‘been built up, and its continued efficiency is absolutely essential, not onlyto fresh development work, but also to the correct working of the arrangements proposed inthis Report, or, indeed, of any other arrangements that could be devised.

Abdul Hamid SOLIMAN, R. M. MACGREGOR,Egyptian Delegate. British Delegate.

CAIRO, March 21, 1926.

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APPENDIX A.

NOTES EXCHANGED.

1 TRADUCTION. - TRANSLATION.

ZIWER PASHA TO LORD ALLENBY.

CAIRO, January 26, 1925.

YOUR EXCELLENCY,

In the note that your Excellency, on behalf of His Britannic Majesty’s Government, addressedto my predecessor on the 22nd November, 1924, you asked that the area of land to be irrigated inthe Sudan Gezira should be increased from 300,000 feddans to an unlimited extent.

To this note my predecessor replied in a note of the 23rd November, in which hedeclared that the question of immediately modifying the limit fixed for the area to be irrigatedin the Gezira was, to say the least, premature and should, in accordance with the repeateddeclarations of His Britannic Majesty’s Government, be settled by mutual agreement, takinginto consideration the vital interests of Egyptian agriculture.

In view of this reply your Excellency then informed the Egyptian Government, in anote of the same date, that instructions had been given to the Sudan Government to theeffect that it was free in future to irrigate an unlimited extent of lanel in the Gezira.

Now that friendly relations have happily been re-established between our two countries, itis my duty to draw your Excellency’s attention to the fact that the measure announced in yournote of the 23rd November has raised the most serious apprehensions in this country. Further,your Excellency is aware that in all the discussions which have taken place in the past between thetwo Governments with a view to reaching an agreement as to the control of the waters of the Nile,and in particular on the subject of the development of irrigation in the Sudan, the EgyptianGovernment has always firmly asserted its rights in the waters of the Nile.

The Egyptian Government has always maintained that this development should in nocase be of such a nature as to be harmful to the irrigation of Egypt or to prejudice futureprojects, so necessary to meet the needs of the rapidly increasing agricultural population ofthis country. I do not think I am wrong in asserting that this principle, vital to Egypt, hasbeen fully admitted by His Britannic Majesty’s Government.

I have, therefore, to request your Excellency to be so good as to reconsider the questionof the irrigation of the Gezira and to withdraw the instructions referred to in the above-mentioned note of the’ 23rd November, 1924, since such a measure could only serve tostrengthen the good relations between our two countries.

I avail, etc....

A. ZIWER,President at the Council at Ministers,

Minister tor Foreign Affairs.

1 Communicated by His Britannic Majesty’s Foreign Office.

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LORD ALLENBY TO ZIWER PASHA.

CAIRO, January 26, 1925.

SIR,

1. I have the honour to acknowledge the receipt of the note, which your Excellencywas good enough to address to me today asking me to reconsider the question of the irrigationof the Gezira and to revoke the instructions mentioned in the note, which I addressed toyour Excellency’s predecessor on the 23rd November 1924.

2. His Majesty’s Government appreciate the sincerity of the friendly feelings expressedby your Excellency and fully share your desire to restore and strengthen the good relationsbetween our two countries which have been so unhappily disturbed.

3. I am therefore glad to be able to inform your Excellency that I am now in a positionto impart to you the views of my Government on this subject.

4. I need not remind your Excellency that for forty years the British Governmentwatched over the development of the agricultural well-being of Egypt, and I would assureyour Excellency at once that the British Government, however solicitous for the prosperityof the Sudan, have no intention of trespassing upon the natural and historic rights of Egyptin the waters of the Nile, which they recognise to-day no less than in the past, and in givingthe instructions in question to the Sudan Government His Majesty’s Government intendedthat they should be interpreted in this sense.

5. Moved by these considerations and in proof of their intentions, His Majesty’sGovernment are disposed to direct the Government of the Sudan not to give effect to theprevious instructions in regard to the unlimited development of the Sudan Gezira mentionedin the note of the 23rd November, on the understanding that an expert committee composedof Mr. J. J. Canter Cremers, chairman, who has been chosen by agreement between the twoGovernments, Mr. R. M. MacGregor, British Delegate, and Abdul Hamid Soliman Pasha,Egyptian Delegate, who has been selected by the Egyptian Government, shall meet not laterthan the 15th February, 1925, for the purpose of examining and proposing the basis on whichirrigation can be carried out with full consideration of the interests of Egypt and withoutdetriment to her natural and historic rights.

6. It is understood that the Committee will present its report by the 30th June, 1925.I avail, etc.

ALLENBY, F. M.,High Commissioner.

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APPENDIX B.

TIME TAKEN FOR CHANGES OF RIVER LEVEL AT SENNAR TO REACHDELTA BARRAGE.

Method of Determination

Characteristic points on the gauge diagram at Makwar were traced to the gauge diagramof Khartoum gauge. The number of days for the points to reach Khartoum depends uponthe level of the river. The number of days was therefore plotted against the gauge reading atMakwar and a mean curve drawn through the points.

The lag for a given date is obtained by reading from this curve the lag correspondingto the gauge on that date. This is the only practicable method, which can be employed.

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APP

EN

DIX

C

TO

TA

L D

ISC

HA

RG

E R

OSE

TT

A A

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ns o

f cub

ic m

etr e

s pe

r da

y)

Dat

e at

Bar

rage

1912

1913

1914

1915

1916

1917

1918

1919

1920

1921

1922

1923

1924

1925

Mea

n

July

20...

......

.10

00

10

2062

223

10

2324

1613

25...

......

.12

00

60

5057

935

11

2440

2418

Aug

ust

1...

......

.21

00

992

9375

3412

513

3044

9328

475

......

....

230

012

265

110

125

8714

016

4774

120

4376

10...

......

.12

50

3827

410

170

150

190

220

4013

525

020

084

146

15...

......

.33

017

270

6149

037

019

534

034

019

028

035

034

014

926

620

......

....

390

2246

016

555

046

024

039

036

036

045

044

037

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434

625

......

....

450

4048

019

555

040

030

036

550

037

544

052

542

033

538

431

......

....

430

115

515

200

595

395

345

355

510

385

435

515

530

327

404

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92

The same method has been adopted for the reaches Tamaniat to Wadi HaIfa, WadiHaIfa to Aswan and Aswan to EI-Leisi, and the lag in the different reaches added together tomake the total lag.

One day was added for the Jag from El-Leisi to Delta Barrage and 0.7 day for the lagfrom Khartoum, to Tamaniat.

This method, using the curves obtained by Dr. Phillips, was checked by Dr. Hurst forthe early part of January at Makwar. Dr. Hurst used similar methods, but traced thecharacteristic points over different stretches of the river.

The following are the results obtained:

Dr. Hurst, First Method.Makwar, date (approximate) January 6-15, mean gauge (1919-24)6.00, lag to soba ................................................................................................ 4.9Soba date (approximate) January 11-20, mean gauge Khartoum 10.94,lag to Tamaniat .................................................................................................... 8Tamaniat, date January 12-21, mean gauge 10.64, lag to Athbara ..................... 3.1Atbara, date January 16-25, mean gauge 10.94, lag to Halfa ........................... 10.6

19.4

Dr Hurst, Second MethodMakwar, date January 6-15, mean gauge 6.00 lag to Khartoum .................................. 5.3Khartoum, date January 11-20, mean gauge 10.94 lag to Halfa ................................ 14.9

20.2

Dr Phillips.Makwar, date January 6-15, mean gauge 6.00, lag to Khartoum ................................. 5.7Assumed, Soba to Tamaniat ........................................................................................ 1.0Tamaniat, date January 13-22, gauge 10.61, lag to Halfa .......................................... 14.7

21.4

HaIfa, date January 28-February 6, gauge 2.12, lag to Aswan ..................................... 3.5

Collecting ResultsMakwar to KhartoumDr. Hurst (1) .............................................................................................................. 5.3Dr. Hurst (2) .............................................................................................................. 5.3Dr. Phillips ................................................................................................................. 5.7

Mean ................................................................................................................ 5.4

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Khartoum to HalfaDr. Hurst (1) ............................................................................................................ 14.1Dr. Hurst (2) ............................................................................................................ 14.9Dr. Phillips ............................................................................................................... 15.7Mr. Watt ................................................................................................................... 15.5

Mean .............................................................................................................. 15.0

Halfa to AswanDr Phillips .................................................................................................................. 3.5Mr. Watt ..................................................................................................................... 3.5

Mean ................................................................................................................ 3.5

Makwar to Aswan is therefore 23.9, say 24 daysUsing the ordinary curves obtained by the Hydrological Service of the Physical

Department, the lag from Aswan to Delta Barrage corresponding to the mean gauge (1919-24) at Aswan for February 1-10 is 10 days.

Mean lag from Makwar to Delta Barrage is therefore 34 days.In the same way the mean lag from Makwar to Delta Barrage for the years 1912-25

was determined for the 15th July at Makwar and was found to be 27 days.For specially low years the lag was worked out for each individual case.

(Signed) H.E HURSTDirector General, Physical Service

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TIME LAGS EMPLOYED IN DIAGRAM NO. 1

Year Makwar Date Lag in Days to Corresponding DeltaDelta Barrage Barrage Date

July 15 33 days August 171913 July 31 28 days August 28

August 31 22 days September 22

July 15 30 days August 141915 July 31 22 days August 22

August 31 22 days September 22

July 15 27 days August 11Mean year 1912 to 1925 July 31 21 days August 21

August 31 19 days September 19

(Signed) H.E HURSTDirector-General, Physical Service

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APPENDIX D.

TABLE SHOWING APPROXIMATE VOLUME EXTRACTED FROM THE RIVERTO RAISE LEVEL TO FULL CANAL SUPPLY LEVEL ON JULY 31, THE LEVEL INTHE CANAL BEING RAISED FROM SUMMER LEVEL TO FULL SUPPLY LEVEL

IN THE SAME PERIOD.

(Figures reproduced from “Nile Control”, p.87)

Reservoir Corresponding Volumes taken from Level in Volume TotalLevel contents River to raise Canal taken by Volume

of reservoir US level canal takenDay of Julyfrom River

R.I Millions of Millions of Cubic Metres R.I Cubic Cubiccubic metres Cubic Metres per second Metres Metres

per second per second

15 414.50 68.5 – – 414.50 10 10.016 414.60 73.8 5.3 61.4 414.60 11 72.017 414.70 79.1 5.3 61.4 414.70 14 75.018 414.80 84.4 5.3 61.4 414.79 16 77.019 414.90 89.7 5.3 61.4 414.89 18 79.020 415.00 95.0 5.3 61.4 414.99 20 81.021 415.20 107.0 12.0 139.0 415.18 25 164.022 415.40 119.0 12.0 139.0 415.38 31 170.023 415.60 131.4 12.4 144.0 415.58 37 181.024 415.80 144.2 12.8 148.0 416.77 43 191.025 416.00 157.0 12. 8 148.0 415.97 49 197.026 416.20 172.0 15.0 174.0 416.17 55 229.027 416.40 187.0 15.0 174.0 416.36 62 236.028 416.60 202.0 15.0 174.0 416.55 69 243.029 416.80 217.0 15.0 174.0 416.74 75 249.030 417.00 232.0 15.0 174.0 416.94 84 258.031 417.00 250.0 18.0 208.0 416.94 84 292.0

Canal Head Discharge, from table on p.108.August 1st to November 30th ........................................ 84 Cubic metres per secondDecember 1st to January 15th

.................................................................... 80 Cubic metres per secondJanuary 15th to 18th

............................................................................................. 52 Cubic metres per second

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APPENDIX E.

CRITERION FOR DETERMINING THE DATE AT WHICH WATER MAY FIRSTBE ABSTRACTED FROM THE RIVER AT MAKWAR AT THE BEGINNING OF

THE FLOOD

Makwar Date Makwar Malakal Date Malakal Sum ofDischarge Discharge Makwar andMills./Day mills./Day Malakal

Discharges

1913June 21-30 5.9 June 11-20 57.0 62.9

July 1-10 32.1 21-30 56.5 88.611-20 60.9 July 1-10 67.6 128.521-31 92.1 11-20 72.7 164.8

August 1-10 153.0 21-31 77.1 230.1

1915June 21-30 64.4 June 11-20 61.3 125.7

July 1-10 56.0 21-30 69.6 125.611-20 101.0 July 1-10 74.2 175.221-31 179.0 11-20 78.5 257.5

August 1-10 325.0 21-31 83.3 408.3

Diagram No. 1 Shows that in 1915 there was just sufficient water for Sudan to begintaking water at Makwar on the 11th July. Sum of Makwar and Malakal at this date equals 142mills/day.

Same diagram shows that in 1913 suffient supply for Sudan to begin to take water wasnot reached until the 20th July. Sum of Makwar and Malakal reached 142 mills/day on the21st July as at Makwar.

In each case the discharge in the previous five days was approximately 135 mills/day.

(Signed) H. E. HURSTDirector General, Physical Service.

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98

APPENDIX G.

EXPLANATORY NOTE.

Date on which Shortage Occurred in Lower Egypt.

The dates on which the Rosetta and Damietta Branches were closed established adefinite limit to the period of excess supply.

The dates are, however, not sufficient in themselves to fix the actual date on whichshortage of supply was first felt, as water may be passing down the Nile branches for utilitypurposes and the canal discharges definitely limited to supply the Nile branches.

Damietta Branch. – Water in this branch is required for irrigation purposes throug? theZifta main canals. A further supply is required during the construction of the Faraskour saddIn order to keep back the salt water.Shortage is therefore considered to have been established if the discharge over Zifta Weir isless than 5 millions and no other water is available to increase this discharge.

Rosetta Branch. – Little or no water is required for irrigation, but a certain minimumdischarge must be maintained during the last weeks of the construction of the Mehallet-el-Amir sadd in order to keep back the salt water.

This minimum discharge is considered to be :5 millions for one week before the ideal date for closing the sadd.10 millions for last week but one before the ideal date for closing the sadd.15 millions for last week but two before the ideal date for closing the sadd.

Shortage is, therefore, considered to have been established if and when the availableexcess discharge falls below these figures.

The ideal date -for closing the sadd is considered to be the date on which the totalsupply is equal to the total demand for irrigation purposes only, plus 5 millions over ZiftaWeir. This date corresponds with the date of closure of the Rosetta Branch unless excesswater is still available in the Damietta’ Branch.

The accompanying table shows the date necessary t.o establish the actual date of shortageon the above assumptions.

The records from 1919 onwards are complete and the date arrived at may be taken ascorrect.

The records before 1919 are less complete and the dates arrived at are therefore lessreliable.

Furthermore, the system of feeding Zifta Circle down the Damietta Branch was not aroutine procedure before 1919, and it is therefore less easy to determine whether water suppliedto the Damietta Branch was for irrigation purposes or was actually in excess of the demand.

The question as to when shortage occurred has been considered for the years before1919, in exactly the same way as for the period after 1919, that is to say, as if the present

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system of feeding Zifta down the Damietta Branch had been established.Except in certain individual years the dates finally arrived at are fairly definite and may

be accepted, as such.In any year such as 1923 there is a comparatively long period throughout which the

excess, if any, was very small, and the exact date of shortage is difficult to establish.

(Signed) A. D. BUTCHER,Director Delta Barrage.

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DAT

E A

T D

ELT

A B

AR

RA

GE

ON

WH

ICH

ALL

WAT

ER

WA

S R

EQ

UIR

ED

FO

R I

RR

IGAT

ION

OR

CO

NST

RU

CT

ION

OF

SAD

DS.

Ros

etta

Bra

nch

Dam

iett

a B

ranc

hZ

ifta

Year

Clo

sed

Last

day

of D

isch

arge

Clo

sed

Last

day

of D

isch

arge

Wei

rA

Rem

arks

5 M

il.10

Mil.

15 M

il.5

Mil.

10 M

il.15

Mil.

5 M

il.

Rec

ords

1925

…F.

23F.

21F.

15F.

11M

. 17

M. 5

F. 2

0F.

14

F. 1

5F.

111

1 The

re w

as a

flus

h on

the

good

1924

…F.

23F.

18F.

12F.

9M

.19

M.9

M.3

F.29

M.4

Feb.

09 D

amie

tta

Bra

nch,

1923

…M

.4F.

27F.

23F.

20M

.23

M.1

7F.

6J.

31F.

7Fe

b.13

7

Febr

uary

25,

to M

arch

2.

1922

…F2

5F.

10F.

8F.

6M

.23

M.1

6F.

18F.

11F.

15

Feb.

112

2 The

dat

e is

rat

her

1921

…F.

23F.

13F.

13F.

13F.

22F.

22F.

15F.

15F.

09

Feb.

13 i

ndef

init

e, b

ut b

etw

een

1920

…F.

24F.

19F.

9F.

8F.

14F.

12F.

4F.

28F.

02Fe

b.08

Feb

ruar

y 6

and

1919

…F.

15F.

15F.

11F.

11J.

163

M.5

8J.

8D

.28

J.15

Feb.

12 F

ebru

ary

13.

3 Su

bseq

uent

ly r

eope

ned

Mea

nFe

b.11

for

flus

h an

d fin

ally

Rec

ords

1918

…N

ot C

lose

d…

…A

.. 4

……

….

……

clo

sed

Mar

ch 6

, abo

ut.

less

1917

…A

. 5A

.4M

.29

M.2

6A

. 276

A. 2

3A

. 19

A.1

85…

M.3

04 Sh

orta

ge o

ccur

red

Rel

iabl

e19

16…

15F.

14F.

14F.

9F.

11

F. 1

1J.

11

J. 1

1J.

12

Feb.

10 F

ebru

ary

7 to

20,

but

1915

…M

. 10

M.9

M.8

M.6

F. 1

41F.

11

J. 1

3J.

13

…Fe

b.07

4 f

inal

sho

rtag

e no

t unt

il19

14…

F. 1

2F.

10F.

7F.

3N

ovem

ber

29, 1

913

…Fe

b.03

Mar

ch 9

.19

13…

M. 3

M.1

F.16

F.11

M.1

0M

. 08

J. 3

0J.

30

…Fe

b.11

5 Fl

ush

to F

aras

kour

poo

l to

1912

…F.

16F.

15F.

13F.

12F.

27

F. 2

5F.

25

F. 2

5…

Feb.

12

clea

r ou

t sal

t.19

11…

M.3

0M

.28

M.1

8F.

22M

.25

M.1

4M

. 13

M.1

3…

Feb.

226 D

amie

tta

Bra

nch

was

1910

…A

P. 7

A.5

A.5

M.3

1N

otM

. 01

……

…M

ar. 2

2 o

pene

d an

d cl

osed

aga

ins

Clo

sed

sev

eral

tim

es.

Mea

nFe

b.21

7 T

here

was

no

exce

ss fr

om F

ebru

ary

4 to

Feb

ruar

yR

ecor

ds19

09…

M.1

9M

.25

M.2

5M

.21

M.6

M.5

M.5

M.5

No

Mar

.16

22

, and

a m

ean

date

has

beco

me

Rec

ords

be

en ta

ken

asun

relia

ble

1908

…M

.16

M.1

2M

. 4M

. 2F.

10

M. 9

F. 6

F.4

…Fe

b.25

Fe

brua

ry 1

3.19

07…

M.2

7M

.9F.

9F.

9M

.16

M.1

4M

. 5M

.1…

M.3

8 A

lso

on J

anua

ry 1

3.19

06…

M.2

5M

.25

M. 2

2M

.13

F.28

F. 2

7F.

20

F.20

…M

.20

1905

…M

.23

M.1

9M

.16

M.9

M.1

2M

.11

F. 2

1F.

20…

M.2

019

04…

M.5

M.5

M.5

M.5

A.1

2A

. 11

A.6

M.2

8…

Mar

.18

1903

…M

.22

M.1

6M

.10

M.5

Dec

embe

r 17

, 190

2…

Feb-

2719

02…

M.2

3M

.21

M. 5

F. 2

6D

ecm

ber

13, 1

901

…Fe

b-13

Not

e A. T

he d

ates

show

n in

the

last

col

umn

are

the

first

dat

es o

n w

hich

ther

e w

as n

o w

ater

in th

e R

oset

ta a

nd D

amie

tta

Bra

nche

s in

exce

ss o

f tha

t req

uire

d fo

r ir

riga

tion

and

for

the

cons

truc

tion

of t

he N

ile S

adds

.

(Sig

ned)

A. D

BU

TC

HE

R

(Sig

ned)

H. E

HU

RST

D

irec

tor,

Del

ta B

arra

ge

D

irec

tor-

Gen

eral

, Phy

sical

Ser

vice

.

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101

APPENDIX H.

EXPLANATORY NOTE ON THE DIAGRAM NO. 5

The year 1919-20 has been chosen as a means of determining the critical date forvarious stages of expansion. All these dates fall in the first part of February (Barrage). Thefollowing list shows that from the point of view of the critical date 1919-20 was probably thelowest of recent times 1, excepting 1913-14. Hence the dates will fall earlier in this year thanin most others.

MONTHLY TOTALS – FEBRUARY

Million Cubic Metres

Year Aswan Natural River Delta barrage branches

1913 ....................................... 2,020 1,0001914 ....................................... 1,150 2001915 ....................................... 3,060 7001916 ....................................... 2,400 6001917 ....................................... 3,920 1,3001918 ....................................... 3,990 1,3001919 ....................................... 2,180 9361920 ....................................... 2,110 4381921 ....................................... 2,340 9991922 ....................................... 2,090 7261923 ....................................... 2,350 7281924 ....................................... 2,650 902

It has been assumed that all the discharge of December, January and February downthe Damietta Branch was required, as it was plainly being regulated. The Rosetta dischargetherefore has been taken as representing surplus. In the diagram a smooth curve has beendrawn for this.

The discharge required for extra cultivation of developable from the Gebel Aulia Damhas been taken as 12 millions per day, except in January, when it would be practically zero.This has been obtained by supposing the storage of the Gebel Aulia reservoir to be theequivalent of 2 million milliards at Aswan, and this will be required to give water for 170days to summer cultivation, or at the rate of 12 millions per day. Failing information as tohow this water will be used, it is not worth while making more elaborate assumptions.

1 The surplus at the Delta Barrage in February was less in 1920 than in any other year excepting 1914.

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The losses in Gebel Aulia have been taken as 11 millions per day while it is standingfull, on information obtained from Mr. Tabor.

The date has been determined as follows:

A D is available discharge. B E required dicharge.A B C= C D E and E is the critical date.

The closing of the sadds has not been considered, as when once extra water is availablein Egypt the present arrangements for closing will need reconsideration and the sadds willprobably be closed.

(Signed) H. E. HURSTDirector-General, Physical Service.

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103

APPENDIX I.

EXPLANATION NOTE ON DIAGRAM NO. 6

All discharges shown in the diagram are referred to dates at the Delta Barrage byintroducing the appropriate lag, but without transmission losses.

Discharges are the actual means of the six years from November 1918 to February1924, the period during which the records are most reliable and complete.

Delta Canals + Ibrahimia – The discharges shown include the Damietta branch of theNile which, at this season of the year, may be considered as a channel serving the canals atZifta Barrage and riverain cultivation.

Addition for Land Developed by Gebel Aulia

In default of a complete programme for the utilisation of the Gebel Aulia water, it hasbeen assumed that the whole of the storage there was available will be used during the periodof shortage and for the development of new areas, so that a corresponding increase of waterfor irrigation during the period of excess will also required.No substantial error is made by considering that this increase will be necessary at the DeltaBarrage, or to make good a deficit at the Barrage caused by the development of areas furthersouth.

It is further assumed that the increase of water required from December to Februarywill be proportional to the increase in the total summer supply available.

This is arrived at as follows:

Average date on which Aswan Reservoir is empty 1919-24, 20th July.Beginning of summer conditions assumed 1st February.Mean total discharge passing Aswan, February 1st-July 20th, 1919-24, 12,340 mills.Mean total losses for some period, February 1st – July 20th, 1919-24, 340 mills.Mean total discharge available for Delta Canals and Ibrahimia, 12,000 mills.Estimated total increase due to Gebel Aulia, 2,700 mills.

Hence estimated increase in water requirements during December, January andFebruary, 22 per cent.

Twenty two per cent has therefore been added to the curve for Delta Canals + Ibrahimiato represent water requirements after the completion of Gebel Aulia.

Gezira Canal and Sennar Reservoir – The water requirements for the Gezira Canaland Reservoir have been taken direct from “Nile Control” and have been deducted from thedischarge available at Cairo without any adjustments for losses. The effect of allocating a

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discharge of 7 millions to the Sudan in December in addition to the”“Nile Control” figuresis also shown.

Aswan Reservoir – The area between the Aswan natural river and the Cairo dischargecurve represents the water taken to fill the Aswan Reservoir but to the quantity shown (namely2,042 millions) the gains, which occur between Aswan and Cairo must be added in order toarrive at the full contents of the reservoir.

Water for Closing Sadds – A considerable quantity of water is required, under existingcircumstances in order to maintain a flow through the Nile Sadds at Faraskour and Mehallet-el-Amir during their construction in February, when surplus water has usually been availablein the past.

The completion and full exploitation of the Gebel Aulia Reservoir will, however, putback the date when shortage begins and necessitate earlier closure of the sadds in the future,and the water necessary is therefore shown at a corresponding earlier date.

From the diagram it is clear that, on the mean of the years 1918-24 all demands can besatisfied in full up to the 10th February. From the 10th to the 22nd February (the datecorresponding to “Nile Controls” 18th January at Sennar) future demands cannot be satisfiedin full but a total cube of 140 million will still be available above present requirements.

(Signed) A. D. BUTCHERDirector, Delta Barrage.

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105

APPENDIX J.

ASWAN NATURAL RIVER.

Total Discharge in Millions of Cubic Metres.

December January Total

1905-06 ....................................... 5,100 4,060 9,1601906-07 ....................................... 5,590 4,320 9,9101907-08 ....................................... 4,480 3,550 8,0301908-09 ....................................... 5,750 4,250 10,0001909-10 ....................................... 6,420 5,030 11,4501910-11 ....................................... 6,020 4,500 10,5201911-12 ....................................... 5,370 3,800 9,1701912-13 ....................................... 4,220 3,240 7,4601913-14 ....................................... 2,810 1,720 4,5301914-15 ....................................... 6,700 4,500 11,2001915-16 ....................................... 5,260 3,840 9,1001916-17 ....................................... 7,510 5,270 12,7801917-18 ....................................... 7,250 5,270 12,5201918-19 ....................................... 4,620 3,440 8,0601919-20 ....................................... 4,410 3,340 7,7501920-21 ....................................... 5,310 3,790 9,1001921-22 ....................................... 4,690 3,540 8,2301922-23 ....................................... 4,950 3,630 8,5801923-24 ....................................... 5,200 3,990 9,1901924-25 ....................................... 5,500 3,840 9,340

Mean 1905-06 to 1924-25........... 5,358 3,946 9,304 ” 1918-19 to 1923-24 .......... 4,863 3,621 8,485

(Signed) H. E. HURST,Director-General, Physical Service.

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APPENDIX K.

ASWAN NATURAL RIVER DISCHARGES.10 Day Totals in Millions of Cubic Metres

Date 1919 1920 1921 1922 1923 1924 Meanmills Day

Jan. 1-10………….. .... 1,207 1,216 1,361 1,255 1,267 1,400 128.411-20…………. ... 1,144 1,093 1,205 1,135 1,160 1,300 117.321-31…………. ... 1,087 1,033 1,227 1,149 1,206 1,292 106.0

Feb. 1-10…………. ..... 858 822 933 889 990 1,021 91.911-20…….….. ..... 768 721 846 718 812 933 80.021-28 -29…….. .... 556 570 559 480 547 693 68.1

Mar. 1-10………….. .... 669 582 636 538 568 648 60.711-20…………. ... 607 523 549 477 489 609 54.221-31…………. ... 633 561 554 446 488 592 49.6

Apr. 1-10 ...................... 521 466 458 371 417 455 44.811-20…………. ... 503 466 433 333 383 434 42.521-30…………. ... 483 406 451 269 397 430 41.1

May 1-10 ...................... 457 411 399 284 407 480 40.611-20…………. ... 446 395 369 243 456 459 39.521-31…………. ... 443 416 402 282 516 534 39.3

June 1-10 ...................... 423 375 343 271 405 511 38.811-20 .................... 483 406 451 269 596 546 45.821-30 .................... 625 925 514 365 1,045 574 67.5

July 1-10 ...................... 673 1,009 639 556 1,127 699 78.411-20 .................... 1,125 1,420 894 727 1,145 1,476 113.121-31 .................... 2,117 2,690 1,401 1,877 2,027 2,708 194.2

Aug. 1-10 ...................... 3,966 4,089 2,723 3,417 4,480 4,076 379.211-20 .................... 6,060 6,007 5,379 6,830 7,211 6,024 625.221-31 .................... 6,986 8,382 7,275 8,156 9,437 8,962 745.4

Sept. 1-10 ...................... 6,921 6,721 6,967 8,856 8,078 7,722 754.411-20 .................... 7,398 5,673 6,096 9,798 7,169 8,553 744.821-30 .................... 7,190 5,089 6,414 7,659 7,167 7,224 679.0

Oct. 1-10 ...................... 5,789 5,220 6,076 5,806 6,902 5,854 594.111-20 .................... 3,970 4,918 4,861 5,543 5,837 4,958 501.421-31 .................... 3,282 4,520 4,034 4,966 4,445 4,053 383.3

Nov. 1-10 ...................... 2,420 3,558 2,964 3,418 2,808 2,827 299.911-20 .................... 1,989 2,770 2,321 2,686 2,264 2,522 242.521-20 .................... 1,728 2,170 1,949 2,201 2,009 2,516 209.6

Dec. 1-10 ...................... 1,569 1,937 1,677 1,821 1,828 2,059 181.511-20 .................... 1,419 1,715 1,524 1,571 1,668 1,750 160.821-31 .................... 1,426 1,662 1,491 1,557 1,708 1,695 144.5

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Total of mean natural river 21st January to 31st July corresponding approximately to 1st

January to 15th at Sennar = 13,214 million cubic metres(Signed) H. E. Hurst.

Director General, Physical Service.

LORD LLOYD TO MOHAMMED MAHMOUD PASHA

THE PRESIDENCY, CAIRO, MAY 7, 1929SIR,

I have the honour to acknowledge receipt of the note, which your Excellency has beengood enough to address to me today.

2. In confirming the arrangements mutually agreed upon as recited in your Excellency’snote, I am to express the gratification of His Britannic Majesty’s Government in the UnitedKingdom of Great Britain and Northern Ireland that these discussions have led to a settlementwhich cannot fail to facilitate development and to promote prosperity in Egypt and theSudan.

3. His Majesty’s Government in the United Kingdom concur in your Excellency’sview that this agreement is, and should be, essentially directed towards the regulation ofirrigation arrangements on the basis of the Nile Commission Report, and has no bearing onthe status quo in the Sudan.

4.In conclusion, I would remind your Excellency that His Majesty’s Government inthe United Kingdom have already acknowledged the natural and historical rights of Egypt inthe waters of the Nile. I am to state that His Majesty’s Government in the United Kingdomregard the safeguarding of those rights as a fundamental principle of British policy, and toconvey to your Excellency the most positive assurances that this principle and the detailedprovisions of this agreement will be observed at all times and under any conditions that mayarise.

I avail, etc.LLOYD

High Commissioner

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OCCASIONAL PAPER SERIES

No. 1 (1999)Towards Sustainable RegionalIntegration in East Africa:Voices and Visions

Edited by Duncan Okello

No. 2 (2000)The Impact of East AfricanIntegration on Tanzania’s Economy

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No. 3 (2001)Old Vision - New Plans:Stakeholders’ Opinion on theRevival of the East AfricanCommunity

Edited by Otieno AluokaMichael Bockhorn-Vonderbank

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No. 4 (2002)Environmental Problems in Kenya:Surviving a Spoiled Environment

Situma Mwichabe

No. 5 (2002)Thought and Practice inAfrican Philosophy

Edited by Gail M. PresbeyDaniel Smith

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No. 6 (2002)Kenya on the Path Toward Democracy?An Interim Evaluation

Siegmar SchmidtGichira Kibara

No. 7 (2004)Worlds Apart: Local and Global VillagesFrom Villagisation to Globalisation inOne GenerationEdited by Thomas W. Scheidtweiler

Ingo Scholz

No. 8 (2004)Community leadership in Managingan Urbanising Environment

Musabi Muteshi

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